C O M M I S S I O N O F I N Q U I RY I N T O S TAT E C A P T U R E
H E L D AT
PA R K T O W N , J O H A N N E S B U R G

10

31 OCTOBER 2019

D AY 1 8 6
FINAL

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31 OCTOBER 2019 – DAY 186
PROCEEDINGS RESUME ON 31 OCTOBER 2019
C H A I R P E R S O N : G o o d m o r n i n g M s H o f m e y r, g o o d m o r n i n g e v e r y b o d y.
A D V H O F M E Y R : G o o d m o r n i n g C h a i r.
CHAIRPERSON: Are you ready?
ADV HOFMEYR: We are indeed.
C H A I R P E R S O N : Ye s .
A D V H O F M E Y R : C h a i r o u r f i r s t w i t n e s s t h i s m o r n i n g i s M r P a m e n s k y.
He is legally represented so if I may just ask for an opportunity for his
legal representative to introduce himself?
10

C H A I R P E R S O N : Ye s t h a n k y o u . Ye s .
ADV BLOU: Thank you. Good morning Chair Jonathan ...(intervenes).
CHAIRPERSON: Just come forward.
ADV BLOU:

Oh. ...(indistinct) not speaking into the microphone.

C H A I R P E R S O N : Ye s t h a n k y o u . Yo u d i d o f c o u r s e i n t r o d u c e y o u r s e l f
yesterday it is just to place yourselves on record.
ADV BLOU:

Ye s . M o r n i n g C h a i r m y n a m e i s J o n a t h a n .

CHAIRPERSON: Good morning.
ADV BLOU:

Blou.

C H A I R P E R S O N : Ye s .
20

ADV BLOU:

I am counsel from Johannesburg Bar briefed by Attorney

A d a m M i t c h e l l r e p r e s e n t i n g M r P a m e n s k y.
CHAIRPERSON: Thank you. Thank you very much.
ADV BLOU: Thank you.
CHAIRPERSON: Thank you.
ADV

HOFMEYR:

And

Chair no

other lawyers

Page 2 of 156

have

introduced

31 OCTOBER 2019 – DAY 186
themselves to me this morning but I know from correspondence.
C H A I R P E R S O N : Ye s .
ADV HOFMEYR:

That one or two of the implicated persons indicated

that they might have lawyers present.
C H A I R P E R S O N : Ye s .
ADV HOFMEYR: So maybe we should just give an opportunity if there
is anyone.
CHAIRPERSON: Well nobody is rising.
ADV HOFMEYR: No.
10

CHAIRPERSON: So I am sure they are not in the room.
ADV HOFMEYR: It is fine.
C H A I R P E R S O N : J a o k a y.
ADV HOFMEYR: Thank you. Chairperson if we may then just proceed.
C H A I R P E R S O N : Ye s .
A D V H O F M E Y R : To s w e a r t h e w i t n e s s i n . W e a r e r e a d y t o c o m m e n c e .
CHAIRPERSON: Ja okay please do that.
REGISTRAR: Please state your full names for the record?
M R PA M E N S K Y : M a r k V i v i a n P a m e n s k y.
REGISTRAR: Do you have any objection to taking the prescribed oath?

20

M R PA M E N S K Y : N o .
REGISTRAR:

Do you consider the oath to be binding on your

conscience?
M R PA M E N S K Y : Ye s I d o .
REGISTRAR: Do you swear that the evidence you will give will be the
truth; the whole truth and nothing but the truth, if so please raise your

Page 3 of 156

31 OCTOBER 2019 – DAY 186
r i g h t h a n d a n d s a y, s o h e l p m e G o d .
M R PA M E N S K Y : S o h e l p m e G o d .
C H A I R P E R S O N : T h a n k y o u . Yo u m a y s t a r t .
A D V H O F M E Y R : T h a n k y o u C h a i r.
C H A I R P E R S O N : Ye s .
ADV HOFMEYR: Mr Pamensky just to give you some assistance as to
t h e p i l e s a n d e v e r y t h i n g t h a t i s a r o u n d y o u . Yo u h a v e a f i l e i n f r o n t o f
y o u . C h a i r i f w e c a n e n t e r M r P a m e n s k y ’s a ff i d a v i t a n d a n n e x u r e s i n t o
the record as Exhibit MM3?
10

C H A I R P E R S O N : T h e l e v e r a r c h f i l e c o n t a i n i n g M r P a m e n s k y ’s a ff i d a v i t
and annexures will be marked as Exhibit MM3.
ADV HOFMEYR: Thank you. We will work predominantly in that file Mr
Pamensky but there will be a few occasions where I will need to take
you to other files and those are contained in the black box next to you
on your left. And then also just to orientate you the page numbering in
the top right hand corner of the bundle in front of you and all other
bundles will be what I am referring to when I ask you to go to a
particular page.

And other than that just to make sure that the

microphone stays on and is fairly close to you for the purposes of the
20

evidence.

Mr Pamensky if we turn up page 1 of the Exhibit MM3 in

front of you.

T h a t I u n d e r s t a n d i s a n a ff i d a v i t y o u p r o v i d e d t o t h e

C o m m i s s i o n a n d w a s d e p o s e d t o o n t h e 1 6 t h o f O c t o b e r, i s t h a t c o r r e c t ?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR:

Thank you.

And as I indicated we will work

p r e d o m i n a n t l y i n y o u r a ff i d a v i t a n d o n o c c a s i o n I w i l l n e e d t o t a k e y o u

Page 4 of 156

31 OCTOBER 2019 – DAY 186
to other documents both in this file and in other files.

Mr Pamensky

can you tell us when you joined Eskom?
M R PA M E N S K Y : I j o i n e d E s k o m B o a r d o n t h e 11 t h o f D e c e m b e r 2 0 1 4 .
ADV HOFMEYR: And until when were you a Board Member of Eskom?
M R PA M E N S K Y : U p u n t i l t h e 2 5 t h o r t h e 2 6 t h N o v e m b e r 2 0 1 6 .
ADV HOFMEYR:

Thank you. And during your time at Eskom did you

serve on any committees?
M R PA M E N S K Y : Ye s m a ’ a m m y f i r s t c o m m i t t e e w a s t h e I n v e s t m e n t a n d
Finance Committee whereby I moved in June/July 2016 to the Audit and
10

Risk Committee.
ADV HOFMEYR:

And you were there until your resignation in

November 2016, is that correct?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR:

Thank you.

And could you please tell us what

qualifications you hold?
M R PA M E N S K Y : Ye s I a m a C h a r t e r e d A c c o u n t a n t .
ADV HOFMEYR: And other than serving on the Board of Eskom during
that period have you served on other Boards of companies?
M R PA M E N S K Y : Ye s r o u g h l y a t t h a t p o i n t i n t i m e a b o u t 2 5 B o a r d s o f
20

Directors.
ADV HOFMEYR:

And were any of those companies State Owned

Enterprises?
M R PA M E N S K Y : N o .
ADV HOFMEYR:

And have there been any State Owned Enterprise

Boards on which you have sat since your departure from Eskom?

Page 5 of 156

31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y : N o .
ADV HOFMEYR:

Can you tell us a little bit about how you got to be

appointed to the Eskom Board in December of 2014?
M R PA M E N S K Y :

Ye s .

In mid-2014 I was planning to move on from

B l u e L a b e l Te l e c o m s w i t h i n a b o u t a y e a r o r t w o . R o u g h l y a b o u t t h e 2 8 t h
of September there was an advert in the Sunday Times newspaper I
duly printed it, scanned it and filled in the opportunity to apply to
become a Director on Eskom.

I felt that my skills in relation to

turnaround MNA and restructuring would be ideal for this environment
10

specially the position that Eskom was in at that point in time.
ADV HOFMEYR: What was that position?
M R PA M E N S K Y :

They were load shedding, there was financial

problems, there was cash flow problems in all of their – so those were
the high levels that the market was aware of roughly about those dates.
ADV HOFMEYR:

I t h i n k a t o n e p o i n t i n y o u r a ff i d a v i t y o u d e s c r i b e

E s k o m a s b e i n g i n a s t a t e o f f i n a n c i a l d i s a r r a y. I s t h a t i n y o u r v i e w a n
accurate description of it at that time?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR: And – so I have it that you put in the application for
20

the position at Eskom, what happened thereafter?
MR

PA M E N S K Y :

Subsequent

to

that

application

I

received

c o n f i r m a t i o n o n t h e 11 t h o f D e c e m b e r t h a t m y p o s i t i o n t o t h e B o a r d o f
Eskom had been accepted.
A D V H O F M E Y R : A n d w h o w a s t h a t c o m m u n i c a t i o n f r o m ? To a s s i s t y o u
i t i s u n d e r t a b 4 o f y o u r a ff i d a v i t w h i c h y o u w i l l f i n d a t p a g e 4 4 .

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31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y : I t w a s M i r i a m M a r o g a f r o m t h e D P E D e p a r t m e n t .
ADV HOFMEYR:

And as I understand that e-mail she is attaching a

l e t t e r f r o m t h e M i n i s t e r, i s t h a t c o r r e c t ?
M R PA M E N S K Y : Ye s .
ADV HOFMEYR:

And it is the Minister informing you that you have

been chosen for appointment to the Board of Eskom, is that right?
M R PA M E N S K Y : C o r r e c t .
ADV HOFMEYR: And what happened thereafter?
M R PA M E N S K Y : T h e r e a f t e r I s e n t a f e w d a y s l a t e r a n e - m a i l t o i n f o r m
10

them that I am honoured to take this position but I wanted to inform
t h e m o f a p o t e n t i a l c o n f l i c t b e t w e e n B l u e L a b e l Te l e c o m s a n d i t s
subsidiary CG Cell which had an electricity prepaid vending contract
that was awarded in 2007 and to inform them that if this is going to
jeopardise any business or relationship with CG Cell I would have to
consider my options.
ADV HOFMEYR: And what was the response to that?
M R PA M E N S K Y :

There was a series of responses.

They wanted to

find out more information from me and I duly replied with some more
information.
20

ADV HOFMEYR:

Let us go there if we may?

If you go into your

a ff i d a v i t a t p a g e 5 . Yo u w i l l s e e a t p a r a g r a p h 1 5 . 2 o n t h a t p a g e . Yo u
say on the same day that is a reference to the 18th December Ms
Shelley Pather the Director of Governance within the Department of
Public Enterprises called you to discuss your Directorships and
potential conflicts of interests. She followed that call up with an e-mail

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31 OCTOBER 2019 – DAY 186
in which she requested that I provide the department with detailed
information of the companies in which I held Directors’ positions.
Do you see that? I would like to go to that particular response that you
provided if I may? And you will find that at page 61 under tab 7.
M R PA M E N S K Y : Ye s m a ’ a m .
ADV HOFMEYR: Can you explain what this page discloses?
M R PA M E N S K Y :

This page discloses that the Department of DPE

wanted to find out more information in connection with my telephone
call and my disclosures and potential perceived conflicts of interest.
10

ADV HOFMEYR:

So it is headed with your name and then it says

Current Directorships.

And then there is a list of 25.

Are those

companies of which you were a Director at the time?
M R PA M E N S K Y :

Ye s o r A l t e r n a t i v e D i r e c t o r a t t h e t i m e . T h e y w e r e

both local and international companies.
ADV HOFMEYR: Right. I see the last two are indicated as position of
A l t e r n a t i v e D i r e c t o r, c o r r e c t ?
M R PA M E N S K Y : C o r r e c t .
ADV HOFMEYR:

So all the others are non-alternate – full time

Directors?
20

M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR:

Can we go to number 16 on that page?

Which

company is that?
M R PA M E N S K Y : O a k b a y R e s o u r c e s a n d E n e r g y L i m i t e d .
ADV HOFMEYR: And then you have in brackets there (not reflecting on
CPIC) why was that?

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31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y :

As I understand CPIC were backlogged so it took

them time to obviously put your records within the CPIC.
ADV HOFMEYR: When did you become a Director of Oakbay?
M R PA M E N S K Y : 2 0 – I t h i n k I w i l l s t a n d t o c o r r e c t b u t I t h i n k i t i s t h e
25th September 2014.
ADV HOFMEYR:

Thank you.

Mr Pamensky you were very accurate

with your dates and we appreciate that.

If you are not certain

S e p t e m b e r 2 0 1 4 w o u l d b e s u ff i c i e n t f o r o u r p u r p o s e s .

I will probe

further if I need a particular date.
10

M R PA M E N S K Y : U n d e r s t o o d .
ADV HOFMEYR: But thank you for that. So that was September 2014
that is the same time that the Sunday Times advertisement appeared
for applications to State Owned Enterprises, is that right?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR:

And tell us about how you became a Director of

Oakbay?
M R PA M E N S K Y : W e l l I w a s c a l l e d t o a m e e t i n g b y M r A t u l G u p t a w h o
explained to me that they are listing a subsidiary of theirs called
Oakbay Resources and Energy which it had a subsidiary called Shiva
20

Uranium that was involved in the Uranium and the gold industry and
they were looking for independent non-executive Directors to join their
Boards.
ADV HOFMEYR: Had you had any engagements with Mr Gupta prior to
that?
M R PA M E N S K Y : N o t M r A t u l G u p t a n o .

Page 9 of 156

31 OCTOBER 2019 – DAY 186
ADV HOFMEYR: Any of the other Gupta brothers or associates?
M R PA M E N S K Y : Ye s r o u g h l y i n J u n e I m e t M r To n y G u p t a .
ADV HOFMEYR: Where?
M R PA M E N S K Y : A t h i s h o u s e i n S a x o n w o l d .
ADV HOFMEYR: For what purpose?
M R PA M E N S K Y : J u s t a g e n e r a l d i s c u s s i o n . I t w a s a n i n t r o d u c t i o n .
ADV HOFMEYR:

Oh did he – did you contact him or did he contact

you?
M R PA M E N S K Y : N o h e c o n t a c t e d m e .
10

ADV HOFMEYR: Did he explain to you why?
M R PA M E N S K Y : N o h e s a i d w o u l d y o u l i k e t o c o m e o v e r a n d h a v e a
cup of tea and have a discussion.
ADV HOFMEYR:

Did you know anything about the purpose of the

interaction?
M R PA M E N S K Y : N o .
CHAIRPERSON: Did you know each other prior to that?
M R PA M E N S K Y : N o I d i d n o t .
CHAIRPERSON: He just called you out of the blue and then said would
you like to come and have a discussion with me?
20

M R PA M E N S K Y :

Chair I think it was an – it could have been a

telephone call or it could have been a sms to say would you like to
come and have a cup of tea?
meeting?

Would you like just to come have a

Like a normal business you know people phone people up

and said come have a meeting.
C H A I R P E R S O N : Ye s . A n d y o u r r e s p o n s e w a s t o c o m e ?

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31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y : Ye s S i r.
C H A I R P E R S O N : Ye s . O k a y.
ADV HOFMEYR: And what was the subject matter of that discussion?
M R PA M E N S K Y : I t w a s a g e n e r a l d i s c u s s i o n . I e x p l a i n e d w h o I a m . I
explained what Blue Label does. He explained a little bit of the Sahara
Group, a little bit of Shive Uranium and just a general chat of the
group.
ADV HOFMEYR: Did he discuss TNA at all?
M R PA M E N S K Y : N o h e d i d n o t .
10

A D V H O F M E Y R : Yo u r e c a l l t h a t s p e c i f i c a l l y ?
M R PA M E N S K Y :

Ye s b e c a u s e h e f o c u s s e d s p e c i f i c a l l y m o r e o n t h e

mining and Sahara Computers.
ADV HOFMEYR:

And then as I understand your evidence there is a

f o l l o w u p t h e n i n S e p t e m b e r b u t t h i s t i m e n o t b y M r To n y G u p t a b y M r
Atul Gupta, is that correct?
M R PA M E N S K Y :

I would assume I think it was in roughly August

ma’am where he explained the potential listing of Oakbay Resources
and Energy Limited.
ADV HOFMEYR: And what was your response to that proposition?
20

M R PA M E N S K Y : I n e e d e d t o t h i n k a b o u t i t . I n e e d e d t o a l s o d i s c u s s
w i t h m y e m p l o y e r. I n e e d e d t o c o n s i d e r i f t h e r e i s a n y c o n f l i c t s a n d i f I
am in an Independent Non-Executive within relation to that position.
ADV HOFMEYR: And in either of these discussions was your interest
in or prospects of becoming an Eskom Board Member discussed?
M R PA M E N S K Y : N o .

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31 OCTOBER 2019 – DAY 186
ADV HOFMEYR: Not at all?
M R PA M E N S K Y : N o t a t a l l .
A D V H O F M E Y R : T h a n k y o u . I f w e c a n t h e n g o b a c k t o y o u r a ff i d a v i t a t
page 5.

There we were at paragraph 15.2 and following that in your

a ff i d a v i t y o u t a l k a b o u t h o w y o u r d i s c l o s u r e o f t h e s e D i r e c t o r s h i p s w a s
then resolved with the Department of Public Enterprises?

Can you

explain that to us please?
M R PA M E N S K Y :

My understanding is that I explained the potential

perceived conflict together with disclosures and at the same time
10

updating my Directorships.
ADV HOFMEYR: And how did it all resolve itself?
M R PA M E N S K Y :

It resolved itself where I received another e-mail

whereby – excuse me – first I wrote back after that date from the 19th I
wrote back on the 4th December I had not heard anything to Ms Pather
because I had received an e-mail for the Board meetings and the dates
for the Board meetings.

So I did not want to let anyone down so I

wanted to get confirmation that the DP and Eskom were comfortable
with my disclosures as well as perceived conflicts.
ADV HOFMEYR: Just tell me about those dates for the Board meetings
20

were you given a schedule for the year?
M R PA M E N S K Y : I c a n n o t r e m e m b e r a t t h a t p o i n t i n t i m e t h a t n o r m a l l y
and I think it could have happened post that where you get – I
remember in 2016 we got a schedule of all the Board meetings and all
t h e c o m m i t t e e m e e t i n g s f o r t h e y e a r.
ADV HOFMEYR:

But your urgency I suspect would at least have

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31 OCTOBER 2019 – DAY 186
related to knowing when the first Board meeting was going to be held?
Would you have known that?
M R PA M E N S K Y :

Ye s I k n e w t h a t b u t I – y o u r q u e s t i o n s o r r y i f I a m

wrong was to say was there the whole schedule for the year?

No I

knew there was a Board meeting on the 16th.
ADV HOFMEYR: 16th of January 2015?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR:

But you cannot recall whether you knew when the

remainder in the year were scheduled?
10

M R PA M E N S K Y : C o r r e c t .
A D V H O F M E Y R : I f w e c a n t h e n g o t o p a g e 7 o f y o u r a ff i d a v i t ?

I have

it there that at paragraph 16 there was an acceptance in essence that
your existing Directorships did not interfere with your ability to serve
on the Board and that there was no impediment to joining the Board. Is
that correct?
M R PA M E N S K Y : Ye s .
ADV HOFMEYR: Can I just understand the particular conflict that you
raise and you were concerned about was the CG Celll one, is that
correct
20

M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR: Was there any interaction at all between you and the
department or the Minister about your Directorship on the Oakbay
Board?
M R PA M E N S K Y :

No there was not at that point in time Oakbay

Resources and Energy Limited was purely in Uranium and gold mining

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31 OCTOBER 2019 – DAY 186
and it had the normal standard contract for electricity so there was no
conflict at all within that environment.
ADV HOFMEYR:

Thank you.

I note that in the parliamentary – the

Portfolio Committees hearings that preceded their report of 2018.
Minister Brown gave evidence at the time that your Oakbay Directorship
only occurred after you became a member of the Board of Eskom. That
would have been incorrect would it not?
M R PA M E N S K Y : C o r r e c t .
ADV HOFMEYR:
10

Thank you.

Let us then move to paragraph 17 on

page 7 if we may because you there start to talk about the preparations
you undertook because as I have it you have now confirmed your
appointment to the Board. Can you take us through what preparations
you engaged on?
M R PA M E N S K Y :

Ye s .

After acceptance of that appointment post I

started taking steps to understand the business.
audits and financial statements for March.

I went through the

The integrated report for

March. I also looked up the requirements while I was reading that for
the audits because I am an accountant for the PFMA perspective.

It

explained a few elements. I also looked at the interim results and just
20

generally trying to search the internet to find more information on the
business and the role that we are going to take.
ADV HOFMEYR:

Those interim results were the November results, is

that right?
M R PA M E N S K Y : T h e y w e r e p r e s e n t e d i n N o v e m b e r b u t t h e y w e r e f o r
the 30th of September 2014.

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31 OCTOBER 2019 – DAY 186
ADV HOFMEYR:

Indeed.

And we have touched on it a bit but I

understand part of your rationale for making this – making yourself
available for appointment was your understanding of the precarious
financial position Eskom was in and your sense that you may be able to
contribute to turning it around. Is that a fair summary?
M R PA M E N S K Y : I w o u l d s a y t h a t i s a f a i r s u m m a r y.
ADV HOFMEYR:

Thank you.

Were you aware that in October 2014

Eskom had received a R20 billion financial support package from
government?
10

M R PA M E N S K Y : I w a s a w a r e t h a t t h e y w e r e g o i n g t o g i v e a R 2 3 b i l l i o n
I was not aware whether it had been paid or not.
ADV HOFMEYR: Thank you. And if we go over the page to page 8 you
w i l l s e e t h e r e a t t h e t o p o f t h e p a g e , p a r a g r a p h 1 8 . Yo u s a y t h e r e :
“I did not at that stage read or consider the Public
Finance

Management

Act

other

than

the

reporting

requirements and was not familiar with it.”
Do you see that?
M R PA M E N S K Y : I d o .
ADV HOFMEYR:
20

But you go on to explain that you did gain some

insight. Can you tell us about that?
M R PA M E N S K Y :
obtain

more

Ye s .

So as we progressed in Eskom I started to

understanding

of

the

PFMA

and

the

–

what

the

requirements are from a high level. And as you got into the business
and you started to understand more down the line did you get to
understand more about the business regime, the PFMA regime and

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31 OCTOBER 2019 – DAY 186
those items.
ADV HOFMEYR:

Do you think it is important for Board Members of

State Owned Enterprises to be familiar with the PFMA?
M R PA M E N S K Y : I d o .
ADV HOFMEYR:

Would you agree that the PFMA places heightened

obligations on the Directors of Boards of State Owned Enterprises as
compared with any ordinary private company?
M R PA M E N S K Y :

At what point in time would I have understood that

are you asking me?
10

ADV HOFMEYR: Do you agree that it does do that?
M R PA M E N S K Y : I d o a g r e e i t d o e s .
ADV HOFMEYR: And do you accept that the reason for that might be
that State Owned Enterprises are spending public money?
M R PA M E N S K Y : I d o a g r e e w i t h t h a t .
ADV HOFMEYR: I would like to go to the Public Finance Management
Act with you if I may? Because there are particular provisions of it that
are relevant to the conduct of the Board that we are interested in in
these proceedings.

Yo u w i l l f i n d a f i l e n e x t t o y o u c a l l e d L e g i s l a t i o n

B u n d l e . A n d w e w i l l s t a r t i f w e m a y a t S e c t i o n 5 0 . Yo u w i l l f i n d t h a t a t
20

paginated page 23.

So just to be clear you would not have read the

text of this Act by about January or February of 2015, would you?
M R PA M E N S K Y : I c a n n o t s p e c i f i c a l l y r e c a l l b u t I d i d r e a d t h i s s p e c i f i c
Acts and I did get to understand it within the first six months of my
Directorship.
A D V H O F M E Y R : O k a y. S o t h e s e c t i o n s I a m g o i n g t o t a k e y o u t o t h e n

Page 16 of 156

31 OCTOBER 2019 – DAY 186
should be relatively familiar to you. If we start at Section 50 that sets
out fiduciary duties of accounting authorities. In the context of Eskom
what is the accounting authority of Eskom?
M R PA M E N S K Y : T h a t w o u l d b e t h e B o a r d .
ADV HOFMEYR: And do you see there under 1a and 1b amongst those
duties are a duty to exercise the duty – sorry – to exercise the duty of
utmost care to ensure reasonable protection of the assets and records
o f t h e P u b l i c E n t i t y a n d ( b ) t o a c t w i t h f i d e l i t y, h o n e s t , i n t e g r i t y a n d i n
t h e b e s t i n t e r e s t s o f t h e P u b l i c E n t i t y i n m a n a g i n g t h e f i n a n c i a l a ff a i r s
10

o f t h e P u b l i c E n t i t y.

So you were aware of those obligations, were

you?
M R PA M E N S K Y : I w a s a w a r e o f t h o s e o b l i g a t i o n s .
ADV HOFMEYR:

If we go down to Section 51.

The accounting

authority again the Board of which you were member for a Public Entity
must do a series of things and then there are sub-paragraphs.

The

ones I would like to highlight are over the page at 24. So if we start at
(b).

The Board of Eskom.

Let us just read that in for present

purposes.
“ M u s t t a k e e ff e c t i v e a n d a p p r o p r i a t e s t e p s ”
20

Roman ii is the one I am interested in.
“ To p r e v e n t i r r e g u l a r e x p e n d i t u r e , f r u i t l e s s a n d w a s t e f u l
expenditure.”
Do you see that?
M R PA M E N S K Y : I s e e t h a t .
M R PA M E N S K Y :

Did you have an understanding of what those terms

Page 17 of 156

31 OCTOBER 2019 – DAY 186
meant?
M R PA M E N S K Y : I d i d h a v e a n u n d e r s t a n d i n g w h a t t h o s e t e r m s m e a n t .
As I said to you when I was preparing for this element I understood an
accounting element that you had to report irregular and wasteful
expenditure.
ADV HOFMEYR:

So would you accept wasteful expenditure is

expenditure undertaken by a State Owned Enterprise for which it does
not receive adequate value?
M R PA M E N S K Y : A d e q u a t e v a l u e o r v a l u e i n v a i n ?
10

ADV HOFMEYR: H’mm indeed.
M R PA M E N S K Y : Ye s .
ADV HOFMEYR:

I think that is a fair description.

And what did you

understand by irregular expenditure?
M R PA M E N S K Y :
unauthorised

Irregular expenditure is expenditure that is not

expenditure

but

however

expenditure

that

is

in

contravention of any laws and regulations that pertain to the whole
Eskom organisation.
ADV HOFMEYR: Or I suspect a specific area in which the decision is
being taken.
20

M R PA M E N S K Y : S o r r y I a m n o t u n d e r s t a n d i n g .
ADV HOFMEYR:

Yo u m a d e – y o u – i n y o u r a n s w e r y o u g a v e s o m e

emphasis to the rules and regulations that govern the whole of Eskom.
I was just saying I suspect it would also be any rules or regulations
that applied to a particular division or area within Eskom.
accept that?

Page 18 of 156

Do you

31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y : I a c c e p t t h a t .
ADV HOFMEYR: Thank you. And then if we go to (e) further down the
page you will see:
“ T h e B o a r d o f E s k o m m u s t t a k e e ff e c t i v e a n d a p p r o p r i a t e
disciplinary steps against any employee of the Public
Entity who i. Contravenes or fails to comply with the
provision of this Act.”
And the other one I am interested in is iii.
“Makes or permits an irregular expenditure or fruitless
10

and wasteful expenditure.”
Do you see that?
M R PA M E N S K Y :

I see that ma’am.

ADV HOFMEYR: And were you aware of that obligation on the Board at
the time?
M R PA M E N S K Y : N o t a t t h e t i m e . O v e r t i m e w i t h i n t h e f i r s t s i x m o n t h s
I believe I was aware of these elements within the six month period.
ADV HOFMEYR: Do you accept that this is on the face of the section
quite clearly an obligation placed on the Board to discipline employees
who are found to have contravened or otherwise made or permitted
20

irregular or fruitless or wasteful expenditure?
M R PA M E N S K Y : I a c c e p t t h a t .
ADV HOFMEYR: The next Section I would like us to go to is Section 83
and you will find that on page 31.

And now Section 83 deals with

f i n a n c i a l m i s c o n d u c t b y a c c o u n t i n g a u t h o r i t i e s a n d o ff i c i a l s o f P u b l i c
Entities. Is this a section you were aware of?

Page 19 of 156

31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y : N o .
ADV HOFMEYR: Let us just look at it. Did you come to be aware of it?
M R PA M E N S K Y : N o t s p e c i f i c a l l y a c c o r d i n g t o m y m e m o r y c a n I r e c a l l
specifically this specific one.

I remember the general ones that you

have mentioned before and the accounting as well.
ADV HOFMEYR: Right. Let us look at 83 then.
M R PA M E N S K Y : S o r r y m a ’ a m m a y I j u m p i n ? S o r r y C h a i r.
C H A I R P E R S O N : Ye s .
M R PA M E N S K Y : A l s o a t t h i s p o i n t i n t i m e y o u k n o w w e h a v e e x p e r t i s e
10

at Eskom.
CHAIRPERSON: H’mm.
M R PA M E N S K Y : W e h a v e t h e C E O , C F O .
C H A I R P E R S O N : Ye s .
M R PA M E N S K Y : W h o s h o u l d k n o w t h e s e i t e m s . W e h a v e t h e c o m p a n y
s e c r e t a r y.
C H A I R P E R S O N : Ye s .
M R PA M E N S K Y : W h o i s a n a t t o r n e y.
C H A I R P E R S O N : Ye s .
M R PA M E N S K Y :

20

Who know these things and you can always call on

management and the legal team to assist with any of these as and
when they arrive.
C H A I R P E R S O N : J a . Ye s . J a .
ADV HOFMEYR:

Let us look at Section 83.

It provides that the

accounting authority for a Public Entity commits an act of financial
misconduct if that accounting authority wilfully or negligently:

Page 20 of 156

31 OCTOBER 2019 – DAY 186
a. Fails to comply with a requirement of Sections 50 to 55.
Now you will recall the Section we were in previously was Section
51. So there is a link between those two sections. There is financial
misconduct

if

an

accounting

authority

fails

to

comply

with

the

obligations placing it under Section 51. Do you understand that?
M R PA M E N S K Y : I u n d e r s t a n d t h a t .
ADV HOFMEYR: And:
b. Is that accounting authority will engage in financial misconduct
if it wilfully or negligently makes or permits an irregular
10

expenditure or a fruitless and wasteful expenditure.
Do you see that?
M R PA M E N S K Y : I s e e t h a t .
ADV HOFMEYR: So let us just probe your understanding of that. If an
accounting

authority

took

a

decision

that

constituted

wasteful

expenditure do you understand Section 83 to then make that financial
misconduct?
M R PA M E N S K Y : I d o .
ADV HOFMEYR: And sub-section 2 says:
“If the accounting authority is a Board or other Board
20

consisting of – body consisting of members every
member is individually and severally liable for any
f i n a n c i a l m i s c o n d u c t o f t h e a c c o u n t i n g a u t h o r i t y. ”
Do you see that?
M R PA M E N S K Y : I s e e t h a t .
ADV HOFMEYR: I want to pause there for a moment because when you

Page 21 of 156

31 OCTOBER 2019 – DAY 186
indicated to the Chair you wanted to say something a bit further a
moment or so ago you made reference to the resources within Eskom
that could be relied upon insofar as the obligations of Board Members
is concerned. Is that a fair summary?
M R PA M E N S K Y : T h a t i s a f a i r s u m m a r y.
ADV HOFMEYR: Do you accept however that if you are a member of a
Board of a State Owned Entity you should yourself know about the
Provisions of Financial Misconduct in the PFMA?
M R PA M E N S K Y :
10

Ma’am I do not know about PFMA misconduct but I

believe our general principles and those high level principles that you
can read and understand as a Board Member you should understand
that and take steps to understand that.
ADV

HOFMEYR:

H’mm.

Why

any

reluctance

about

financial

misconduct? It is a provision of the Act that says:
“The accounting authority must not in any way breach
the Act or engage itself in irregular wasteful or fruitless
expenditure and every member of the Board has that
obligation.”
W h y i s t h a t i n a n y w a y d i ff e r e n t t o t h e o t h e r p r o v i s i o n s ?
20

M R PA M E N S K Y : I a m s a y i n g t h e d i ff e r e n c e i s I r e m e m b e r r e a d i n g t h e
other provisions I do not recall going into this financial misconduct.
ADV HOFMEYR:

I fully understand that.

I am asking at the level of

principle.
M R PA M E N S K Y : Ye s y o u c o r r e c t o n t h e l e v e l o f p r i n c i p l e .
A D V H O F M E Y R : Yo u s h o u l d – a n y m e m b e r o f a n a c c o u n t i n g a u t h o r i t y

Page 22 of 156

31 OCTOBER 2019 – DAY 186
of an SOE should know about what is required of them in order not to
engage in financial misconduct.
M R PA M E N S K Y : C o r r e c t .
ADV HOFMEYR: And 83.4 provides that:
“Financial misconduct is a ground for dismissal or
suspension of or other sanction against a member or
person referred to in two or three despite any other
legislation.”
Just to be clear I take it that you will say at the time you were
10

not aware of this provision. Is that correct?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR: Is this the first time you aware of that provision?
M R PA M E N S K Y :

No.

This is not the first time I am aware of that

provision.
A D V H O F M E Y R : Yo u b e c a m e a w a r e o f i t i n t h e c o u r s e o f y o u r p o s i t i o n
on the Board of Eskom. Is that correct?
M R PA M E N S K Y :

Ye s .

From a high level that financial misconduct is

i r r e g u l a r.
ADV HOFMEYR: Thank you and I think the important point about 4 is
20

that it can result in sanctions taken against those who are engaged in
it.
M R PA M E N S K Y : C o r r e c t .
ADV HOFMEYR: Do you accept that?
M R PA M E N S K Y : I a c c e p t t h a t .
ADV HOFMEYR:

Thank you and then if we go over to the next page,

Page 23 of 156

31 OCTOBER 2019 – DAY 186
p a g e 3 2 . T h e r e i s a s e c t i o n t h a t c r e a t e s o ff e n c e s a n d p e n a l t i e s . W e r e
you aware of this section at the time you took up the Directorship at
Eskom?
M R PA M E N S K Y : N o . I w a s n o t .
ADV HOFMEYR: Did you subsequently become aware of it?
M R PA M E N S K Y : I d o n o t k n o w. I c a n n o t r e c a l l .
ADV HOFMEYR:

O k a y.

Let us look at sub-section 2, because sub-

section 2 says:
“ A n a c c o u n t i n g a u t h o r i t y i s g u i l t y o f a n o ff e n c e a n d
10

liable on conviction to a fine or to imprisonment for a
period not exceeding five years.

If that accounting

authority wilfully or in a grossly negligent way fails to
comply with the provision of Sections 50, 51 or 55.”
So that again is a reference back to those fundamental duties
t h a t w e l o o k e d a t i n 5 1 a n d c r e a t e s a n o ff e n c e i f a n y a c c o u n t i n g
authority wilfully or grossly negligently fails to comply with its
requirements. Do you see that?
M R PA M E N S K Y : I s e e t h a t .
A D V H O F M E Y R : T h a n k y o u . I f w e c a n t h e n r e t u r n t o y o u r a ff i d a v i t a n d
20

w e w i l l p i c k i t u p a t p a g e 8 o f t h e a ff i d a v i t .
M R PA M E N S K Y : S o r r y. M a ’ a m c a n I r e m o v e – c a n I p u t t h e f i l e b a c k
or leave it on the side?
A D V H O F M E Y R : Ye s . Yo u c a n p u t t h e f i l e b a c k . W e m a y n e e d t o g o
t o i t l a t e r, b u t n o t i m m i n e n t l y.
M R PA M E N S K Y : S o r r y. C a n y o u r e p e a t w h a t p a g e i t i s o n ?

Page 24 of 156

31 OCTOBER 2019 – DAY 186
ADV HOFMEYR:

Page 8 and at page 8 I would like to pick it up at

paragraph 19, because there you say you attended your for – first
Board meeting shortly thereafter on the 16th of January 2015.
M R PA M E N S K Y : C o r r e c t ?
ADV HOFMEYR: Do you recall that?
M R PA M E N S K Y : I r e c a l l t h a t .
ADV HOFMEYR: Do you recall whether there were any discussions at
that meeting about the TNA Contract that had been entered into?
Signed by Mr Matjila for R43.2 million.
10

M R PA M E N S K Y : N o .
ADV HOFMEYR:

I asked a composite question there which was not

f a i r. I s a i d c a n y o u r e c a l l w h e t h e r i t w a s d i s c u s s e d .
M R PA M E N S K Y : T h e r e w a s n o t h i n g d i s c u s s e d .
ADV HOFMEYR:

Nothing discussed.

Thank you.

At the meeting on

the 16th of January were you then alerted to when the next meetings of
the Board would be?
M R PA M E N S K Y : I c a n n o t r e c a l l .
ADV HOFMEYR: Do you have a sense of how regularly the Board was
meeting in 2015?
20

M R PA M E N S K Y :

At the beginning of the stage it was common cause

t h a t E s k o m w a s i n i t s f i n a n c i a l d i s a r r a y.
There was load shedding.

There was the War Room.

There was a variety of elements.

were quite active at that point in time.

So they

The subcommittees started

getting active from that period.
So you would spend quite a bit of time at – you will spend

Page 25 of 156

31 OCTOBER 2019 – DAY 186
quite a bit of time involved in those committees specifically the finance
committee that I was in.
ADV HOFMEYR: We have looked at the minutes of the Board meetings
and it seems to us that they occurred at least monthly for most of the
year of 2015. Does that accord with your recollection?
M R PA M E N S K Y :

My recollection was that there was meant to be a

Board meeting on the 26th of February and that meeting got cancelled
at the last moment.
ADV HOFMEYR: Okay but let us talk first of all about the spread of the
10

y e a r. W a s t h e r e g e n e r a l l y a m e e t i n g e v e r y m o n t h ?
M R PA M E N S K Y : O f t h e B o a r d ?
A D V H O F M E Y R : Ye s .
M R PA M E N S K Y :

No.

The Board meetings are set in periods every

quarter and then any ad-hoc or any other meetings that need to be
a d h e r e d t o w i l l t h e n b e c a l l e d a c c o r d i n g l y.
ADV HOFMEYR: Okay and you have a particular recollection about the
26th of February meeting being postponed. Is that right?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR: So as you sit now are you aware of a meeting on the
20

16th of February that took place?
M R PA M E N S K Y : I c a n n o t r e c a l l e x a c t l y.
ADV HOFMEYR:

When it is relevant we will take you to the

...(intervenes).
M R PA M E N S K Y : T h a n k y o u .
ADV HOFMEYR:

Particular minutes.

O k a y.

Page 26 of 156

So you have this first

31 OCTOBER 2019 – DAY 186
Board meeting on 16 January and I understand you to say there was no
discussion at all in that Board meeting about the TNA Contract that we
are interested in at the Commission at the moment. Is that right?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR:

Were the handover reports made available to you at

that first meeting?
M R PA M E N S K Y :

According to my – best of my recollection I do not

remember getting any handover reports.
A D V H O F M E Y R : O k a y. I w a n t t o t a k e y o u t o w h a t w e h a v e b e e n a b l e
10

to source as the Board pack that was provided for that first meeting. It
does appear to have handover reports, but Mr Pamensky I am fully
a p p r e c i a t e w e a r e g o i n g b a c k m a n y y e a r s n o w. S o w h a t I w o u l d l i k e t o
do is ask you to look at the document and then you can tell us whether
i t j o g s a m e m o r y.
So you will find that handover – at least the Board pack - let
me just find it here.
another file.

Oh.

Ye s .

That is where we need to go into

If we can please – if you can take out the file of

M r Ts o t s i ’s e v i d e n c e . T h a t i s m a r k e d o n i t s s p i n e M M 6 a n d i n t h a t f i l e I
w o u l d l i k e u s t o t u r n u p p a g e 3 1 7 t o w a r d s t h e b a c k . O k a y.
20

Okay so that seems to be an agenda for the Eskom Board of
Directors Meeting to be held on the 16th of January 2015 at Megawatt
Park. Mr Pamensky to the extent that I take you to documents that you
h a v e n o t s e e n f o r a w h i l e a n d y o u w a n t a n o p p o r t u n i t y t o c o n s i d e r. Yo u
must please indicate to us that you would like that opportunity
...(intervenes).

Page 27 of 156

31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y : Ye s m a ’ a m .
ADV HOFMEYR: At any point. So this appears to be the agenda and
then what is over the page and successive pages thereafter are various
documents that we understand have been included in the Board pack
that was provided for that meeting and it is a series of in a sense
handover reports.
T h e f i r s t d o c u m e n t a t 3 1 8 i s “ P r e p a r a t i o n f o r B o a r d Tr a n s i t i o n
- IFC”.

That is the committee – had you been appointed to that

committee yet or ...(intervenes)?
10

M R PA M E N S K Y : N o . I h a d n o t b e e n a p p o i n t e d t o t h a t c o m m i t t e e y e t .
ADV HOFMEYR:

O k a y, b u t t h a t w o u l d h a v e b e e n t h e o n e t h a t y o u

subsequently come to sit on. Is that right?
M R PA M E N S K Y : Ye s .
ADV HOFMEYR:

Having seen these documents now does it jog a

memory that these had been provided?
M R PA M E N S K Y : N o C h a i r. I t d o e s n o t .
ADV HOFMEYR: The – there is one report here that I am interested in
and it appears at page 361.
M R PA M E N S K Y : Ye s m a ’ a m .
20

A D V H O F M E Y R : T h e r e l e v a n t t e x t I w a n t t o t a k e y o u t o i s 3 6 1 . Yo u d o
not need to flip back two pages, but just to tell you two pages back is
the start of this report and this is the report of the Audit and Risk SubCommittee of Eskom, but at 361 you will see there is a series of bullets
on the far left hand side under a heading “Outstanding Issues.” Do you
see that?

Page 28 of 156

31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y : I s e e t h a t m a ’ a m .
ADV HOFMEYR: And the third bullet on the far-left hand side reads:
“Reportable

irregularity

identified

by

the

external

auditors during the review of 30 September 2014 interim
results. This matter was reported to and dealt with by
the Board.”
Do you see that?
M R PA M E N S K Y : I s e e t h a t .
ADV HOFMEYR: Do you remember seeing this at the time?
10

M R PA M E N S K Y : N o t a t a l l m a ’ a m .
ADV HOFMEYR:

If you had read it at the time what would it have

conveyed to you?
M R PA M E N S K Y : I t w o u l d h a v e i n f o r m e d m e t h a t t h e r e p o r t a b l e – s o r r y.
M a y I j u s t j u m p b a c k ? M y u n d e r s t a n d i n g o f a r e p o r t a b l e i r r e g u l a r i t y.
ADV HOFMEYR: Please.
M R PA M E N S K Y : A r e p o r t a b l e i r r e g u l a r i t y i s w h e n t h e r e i s a n u n l a w f u l
act or omission by management that the auditors feel will cause
financial harm to the business or if someone is in breach of their
financial – I mean their fiduciary duties. Once the auditors’ report this
20

they have to report it directly to IRBA.
Their Independent Regularity Body of Auditors and they have
30 days – sorry the Board and the company has 30 days to respond to
t h a t r e p o r t a b l e i r r e g u l a r i t y.

My reading of this would say the matter

was reported to and it was dealt with by that Board.

So it was not

coming across to me, but I have not seen this. I was not aware.

Page 29 of 156

31 OCTOBER 2019 – DAY 186
A D V H O F M E Y R : T h a n k y o u . I f w e c a n t h e n g o b a c k i n t o y o u r a ff i d a v i t .
M R PA M E N S K Y : M a y I p u t t h i s b a c k ?
ADV HOFMEYR: Indeed.
M R PA M E N S K Y : T h a n k y o u .
ADV HOFMEYR: Mr Pamensky I am now going to take you to a series
of minutes of Board meetings at which you were not present. So I want
to state it up front I am not suggesting that you would have had any
knowledge of what was going on in those Board meetings. They are the
three Board – at the time.
10

They are the three Board meetings that

occurred in Eskom prior to the appointment of the new Board on the
11 t h o f D e c e m b e r.
It is important though that you now at least get some insight
into what was happening in the Board prior to becoming a new member
of it and for that purpose we are going to focus on what was happening
i n r e l a t i o n t o t h e T N A C o n t r a c t . O k a y. S o l e t u s s t a r t w i t h t h e m e e t i n g
that occurred on the 24th of November 2014. Again prior to you being a
member of the Board. That is taken as given and you will find that in
your file at page 336.
M R PA M E N S K Y : Ye s m a ’ a m .

20

A D V H O F M E Y R : Yo u w i l l s e e t h e r e t h i s d o c u m e n t i s h e a d e d “ M i n u t e s
of the Eskom Board Meeting held on 24 November 2014 at Megawatt
P a r k ” a n d j u s t t o c o n f i r m y o u a r e n o t p r e s e n t . Yo u a r e n o t a m e m b e r o f
the Board at that time. I do not suggest you read it in detail. What I
would like to take you through though is if you go over the page to
page 337.

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31 OCTOBER 2019 – DAY 186
Yo u w i l l s e e u n d e r i t e m 5 w h i c h i s h e a d e d “ A p p r o v a l o f t h e
Agenda” that it was noted that there was only one agenda item being
the approval of the modifications to the condensed group interim
financial statements for Eskom Holdings for the six months ended
30 September 2014. Those are the IFCs that you considered?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR: Albeit it later?
M R PA M E N S K Y : I c o n s i d e r e d i t l a t e r. T h e y w e r e r e l e a s e d o n t h e 2 8 t h
o f N o v e m b e r.
10

ADV HOFMEYR: Correct.
M R PA M E N S K Y :

The report of irregularity was defined on the 21st

o f N o v e m b e r.
ADV HOFMEYR: Correct and what then continues in this set of minutes
and I do not suggest we read them.

I will summarise for present

p u r p o s e s i s a d e t a i l e d e n g a g e m e n t a b o u t t h i s r e p o r t a b l e i r r e g u l a r i t y.
What the Board was going to do about it and by reportable irregularity
it is the TNA Contract that was entered into by Mr Matjila. The fact that
the Independent Auditors had identified it.
The fact that they needed to report on it.
20

So much of what

you have said about reportable irregularities was being discussed by
the Board.
M R PA M E N S K Y : S o r r y m a ’ a m . M a y I j u s t s a y s o m e t h i n g C h a i r ? I n t h e
interim results on the reportable irregularity it never mentioned the
name TNA. Otherwise I would have picked it up. It said there was a
R43 million sponsorship that was irregular and that the Board was

Page 31 of 156

31 OCTOBER 2019 – DAY 186
dealing with these issues which you duly have to do.
ADV HOFMEYR:

So let us just be clear about what you did pick up.

Did you pick up the fact of the reportable irregularity for a contract in
the value of 43 million?
M R PA M E N S K Y : T h a t i s c o r r e c t .
A D V H O F M E Y R : Yo u d i d n o t h o w e v e r r e l a t e i t t o T N A ?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR: Thank you. So as I say 24 November meeting. This
i s b e i n g d i s c u s s e d e x t e n s i v e l y.
10

There is a debate between the Audit

and Risk Committee and the Chairperson thereof about what the
obligations of Eskom are.

I am just drawing to your attention it was

heavily debated in November prior to you being on the Board. Right.
It was made clear at page 339, if you would like to just move
to that and it is under clause 6 – paragraph 6 on that page. That the
Board was really being informed about the nature of reportable
irregularities and how auditors are legally obliged to report them when
they are found and then that there is an opportunity for management to
respond within 30 days. Are you aware of those obligations? Are you
not?
20

M R PA M E N S K Y :

Ye s . A s c h a r t e r e d a c c o u n t a n t s w e s h o u l d b e a w a r e

of those ...(intervenes).
ADV HOFMEYR: Indeed.
M R PA M E N S K Y : P r o v i s i o n s .
ADV HOFMEYR: And then Mr Pamensky if we can go to the meeting –
t h e n e x t m e e t i n g t h a t w a s h e l d a t t h e B o a r d . Yo u w i l l f i n d t h a t a t p a g e

Page 32 of 156

31 OCTOBER 2019 – DAY 186
343.

Now that is a meeting of the 3rd of December 2014.

Just more

than a week before you were appointed as a member of the Eskom
Board.

Again you were not present, but a prominent item on that

agenda you will see over the page at 344 under paragraph 7 is the TNA
Sponsorship Legal Report, because at this stage – and I take it you
subsequently came to be aware that a legal review was done of this
contract. Is that correct?
M R PA M E N S K Y : C o r r e c t .
ADV HOFMEYR: So just to situate you in time. The Board is now on
10

t h e 3 r d o f D e c e m b e r.

They have received the forensic report that the

auditors had done, SNG.

That report recommended that lawyers be

engaged ...(intervenes).
M R PA M E N S K Y : C o r r e c t .
ADV HOFMEYR: In order to review it. That is your recollection of the
report?
M R PA M E N S K Y : T h a t i s m y r e c o l l e c t i o n .
ADV HOFMEYR:

Lawyers had been engaged and at this 3 December

meeting a representative of Ledwaba Mazwai Attorneys who had been
engaged with the report is in fact invited and makes presentations to
20

the Board. I would like to pick up just on one or two aspects of what
w a s d i s c u s s e d t h e r e . Yo u w i l l f i n d t h a t a t 3 4 5 . I w o u l d j u s t l i k e y o u r
comment on something that is in the penultimate paragraph.
penultimate paragraph says:
“It

was

summarised

that

the

complaint

was

that

Mr Matjila exceeded his authority to approve and sign

Page 33 of 156

The

31 OCTOBER 2019 – DAY 186
the TNA Contract and that Mr Choeu removed the
termination clause against legal advice. It appeared that
Mr Matjila was not aware that the termination clause had
b e e n r e m o v e d . I t w a s a g r e e d t h a t i t w a s n o t t h e B o a r d ’s
responsibility to take action against Mr Choeu as he did
not report to the Board and was an employee of Eskom.”
Do you see that?
M R PA M E N S K Y : I s e e t h a t .
ADV HOFMEYR: Do you remember a little while ago we looked at the
10

provisions of the PFMA?
M R PA M E N S K Y : I d o .
ADV HOFMEYR: And there was one provision that said that the Board
must act against any employee ...(intervenes).
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR:

Engaged

in

i r r e g u l a r,

fruitless

or

wasteful

expenditure. If you had been present at this meeting do you think you
might have taken issue with that?
M R PA M E N S K Y :

If I had been at Eskom for three/four years and

understood the PFMA and with the expertise there.
20

Yo u w e r e c l e a r l y

duty bound ...(intervenes).
ADV HOFMEYR: H’mm.
M R PA M E N S K Y : To i s s u e d i s c i p l i n a r y.
ADV HOFMEYR: Mr Pamensky why do you preface it with three or four
years?

Should not Non-Executive Members of the Boards of State-

Owned Entities know about their obligations from the first day they

Page 34 of 156

31 OCTOBER 2019 – DAY 186
start?
M R PA M E N S K Y :

Ye s .

Yo u l e a r n a n d t a k e s t e p s t o g e t – i t i s a v e r y

detailed document. We are not attorneys. So you read the information
that is within your expert or experience or expertise such as your
general duties.

I as accountant looked at the report requirement but

you also can rely on the expertise within the organisation.
Such as your Company Secretary and Head of Legal who
normally had attendance in meetings.

If I see here you have the

General Manager of legal there.
10

ADV HOFMEYR: Huh-uh.
M R PA M E N S K Y : I w a s n o t s u r e M r Ve n t e r w a s q u a l i f i e d a s a n a t t o r n e y.
I knew that mister – the Company Secretary – ah.

That is Board

S e c r e t a r y. S o r r y. T h e C o m p a n y S e c r e t a r y w a s n o t i n a t t e n d a n c e a n d
he should know these items. He is also an attorney by practice and he
s h o u l d h a v e k n o w n t h e s e e l e m e n t s a n d a d v i s e d t h e B o a r d a c c o r d i n g l y.
ADV HOFMEYR: Thank you, but if you had been on the Board for three
or four years you might have picked it up?
M R PA M E N S K Y : I m i g h t h a v e p i c k e d i t u p .
ADV HOFMEYR: Let us then go over if we may to page 347. I would
20

like to look at the paragraph sort of after the middle of the page that
begins:
“It was agreed …”
Do you see that?
M R PA M E N S K Y : Ye s .
ADV HOFMEYR: So there the following is recorded.

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31 OCTOBER 2019 – DAY 186
“It was agreed that the matter had to be finalised …”
Just to orientate you.

It is the TNA matter that they are still

discussing.
“…had to be finalised at a meeting to be held on
8 December 2014.

In response to a discussion as to

whether the contract would be regarded as good or bad.
It was agreed that from the standpoint of the financial
status of Eskom the contract could not be regarded as a
good contract.
10

However this could only be resolved

once Mr Matjila had made a representation to the Board
and explained why he, Mr Matjila, was of the opinion that
it was a good contract.”
And then there is advice about the procedure that should be
followed. Do you see that?
M R PA M E N S K Y : I d o .
ADV HOFMEYR: I want to check with you whether you have the same
understanding as I do of that paragraph. It seems to me that what was
agreed is that it was necessary for the Board to make a determination
as to the value of the contract. Do you agree with that?

20

M R PA M E N S K Y : J u s t o n e m i n u t e . C a n I j u s t r e r e a d i t ?
ADV HOFMEYR: Of course.
M R PA M E N S K Y : S o r r y. C a n y o u r e p e a t y o u r q u e s t i o n p l e a s e ?
A D V H O F M E Y R : C e r t a i n l y. W h e n I r e a d t h a t I u n d e r s t a n d i t t o m e a n
that the Board understood it needed to make a determination itself as
to whether there was value in the contract for Eskom.

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31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y : Ye s .
ADV HOFMEYR: And do you also agree with me that what the Board
resolved to do is let Matjila come and give us his account of whether
there was good value in the contract or not and then we would meet
again to make a decision?
M R PA M E N S K Y : I d o a g r e e w i t h t h e e l e m e n t m a ’ a m w h e r e M r M a t j i l a ,
the Acting CEO, would have to come and explain what a good contract
is. That is correct. The second part of your sentence there. It is in
p o i n t o n e , t w o , t h r e e , f o u r. C o r r e c t .
10

ADV HOFMEYR: Thank you.
M R PA M E N S K Y :

He would make representations of why there was a

good or bad contact – why he felt it was a good contract. The Board
would deliberate and determine from there.
ADV HOFMEYR: Indeed and it is identified that that meeting is going
t o t a k e p l a c e o n t h e 8 t h o f D e c e m b e r.

Do you see that?

At the

beginning of that paragraph:
“It was agreed that the matter had to be finalised at a
m e e t i n g t o b e h e l d o n 8 D e c e m b e r. ”
M R PA M E N S K Y : T h a t i s c o r r e c t .
20

ADV HOFMEYR:

W e l l l e t u s m o v e t o t h a t m e e t i n g i f w e m a y.

starts at page 349.

There is a lot of discussion.

purposes

go

we

will

through

it

in

a

It is

Just for reference

moment.

M r M a t j i l a ’s

r e p r e s e n t a t i o n s w e r e d a t e d t h e 5 t h o f D e c e m b e r. S o b e t w e e n t h e s e t w o
Board meetings they had clearly followed the process.
M r M a t j i l a ’s

response

had

been

Page 37 of 156

received

on

the

5th

31 OCTOBER 2019 – DAY 186
o f D e c e m b e r a n d t h e n t h e B o a r d m e e t s o n t h e 8 t h o f D e c e m b e r, r i g h t ?
M R PA M E N S K Y : M a y I a s k a q u e s t i o n ?
ADV HOFMEYR: H’mm.
M R PA M E N S K Y : M a ’ a m i n t h e s u b m i s s i o n o f t h e r o u n d r o b i n r e s o l u t i o n
that was submitted to us that date of mister – or the – I cannot
pronounce the name.

S o r r y.

I am terrible.

The Acting CEO gave a

representation based on the SNG Report. That is how I interrupted his
representations on that date.
ADV HOFMEYR: We will look at it when we go to it, because I know it
10

i s a p a r t i c u l a r s e t o f r e p r e s e n t a t i o n s y o u c o n s i d e r e d c a r e f u l l y.
M R PA M E N S K Y : Ye s .
ADV HOFMEYR: For present purposes the date is what is relevant. It
i s t h e 5 t h o f D e c e m b e r. S o i t c o m e s b e t w e e n t h e m e e t i n g o f t h e 3 r d a n d
t h e m e e t i n g o f t h e 8 t h . Yo u w i l l a c c e p t t h a t ?
M R PA M E N S K Y : I w i l l a c c e p t t h a t . S o r r y m a ’ a m . S o r r y C h a i r. I a m
just saying that I am unaware of that date or any documentation
…(indistinct) that has come to our attention.
A D V H O F M E Y R : O k a y. W e l l l e t u s j u s t n o t l e a v e t h i s h a n g i n g . I f w e
g o t o M r M a t j i l a ’s r e s p o n s e w h i c h w a s p r o v i d e d t o y o u w i t h t h e r o u n d

20

robin resolution. Let me just find it. It is in your file. It appears in two
p l a c e s u n f o r t u n a t e l y. I a m g o i n g t o t a k e y o u t o t h e o n e I t h i n k t h a t y o u
provided. It is at page 174 under tab 19.
M R PA M E N S K Y : Ye s m a ’ a m .
ADV HOFMEYR:

This is the representations of Mr Matjila that you

considered. Is that correct?

Page 38 of 156

31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR:

The only point for present purposes is in that long

title in capitals. It is “Measures must be implemented by the Corporate
A ff a i r s D e p a r t m e n t t o e n s u r e t h a t t h e s e o b j e c t i v e s a r e a c h i e v e d f o r t h e
c o m p a n y ’s b e n e f i t .

Representations of the Acting Chief Executive

O ff i c e r t o t h e D r a f t R e p o r t C o m p i l e d b y S N G e n t i t l e d R e v i e w o f t h e
Process Undertaken and Awarding the Sponsorship Contract to TNA
d a t e d 5 N o v e m b e r 2 0 1 4 . ” Yo u d o n o t t a k e i s s u e w i t h t h e f a c t t h a t t h i s
was a document produced on the 5th of December 2014. Do you?
10

M R PA M E N S K Y :

Ma’am it was dated the 5th, but there was another

date at the back on the 27th ...(intervenes).
A D V H O F M E Y R : Ye s .
M R PA M E N S K Y : B u t m y i n t e r p r e t a t i o n o f t h a t t h i s w a s i n r e s p o n s e t o
the SNG Report.
A D V H O F M E Y R : Ye s .
M R PA M E N S K Y : S o I a m n o t s u r e w h i c h a r e t h e d a t e s , b u t I w i l l a g r e e
that this is dated the 5th. It must be the – this was either completed on
– s o r r y, t h i s w a s e i t h e r i n r e l a t i o n t o t h e S N G R e p o r t d a t e d t h e 5 t h
w h i c h w a s g i v e n – d a t e d a n d s i g n e d o n 2 7 N o v e m b e r.
20

ADV HOFMEYR: Mr Pamensky ...(intervenes).
M R PA M E N S K Y : H ’ m m .
ADV HOFMEYR:

I have made an error for which I must apologise.

This actually even preceded the 3rd of December meeting.
h a p p e n i n g i n N o v e m b e r.

So I do apologise.

This is all

It is dated the 5th

of November 2014, but you are absolutely right. It is in a sense signed

Page 39 of 156

31 OCTOBER 2019 – DAY 186
o ff o n t h e 2 7 t h o f N o v e m b e r 2 0 1 4 w h i c h i s e v e n b e f o r e t h e 3 r d
o f D e c e m b e r m e e t i n g . Yo u w i l l a c c e p t t h a t ?
M R PA M E N S K Y : I w i l l a c c e p t t h a t .
ADV HOFMEYR: Right. So his representations were available prior to
the meeting of the 8th of December and even so prior to the meeting of
t h e 3 r d o f D e c e m b e r. C o r r e c t ?
M R PA M E N S K Y : C o r r e c t .
ADV HOFMEYR:

Right.

L e t u s g o b a c k t h e n t o p a g e 3 5 2 i f w e m a y.

Those are the minutes of the 8th December meeting.
10

Again it is a

meeting at which the representatives of Ledwaba Mazwai Attorneys
attended and there was a great deal of further discussion about the
TNA Contract and what the responsibilities of the Board were.
In fairness to the Board they were faced with something of a
predicament here because they knew that their term was ending very
i m m i n e n t l y.

Right.

It was going to end on the 10th of December and

t h e y w e r e d e c i d i n g h o w t o d e a l w i t h t h i s r e p o r t a b l e i r r e g u l a r i t y, t h e
SNG Report, the legal review and one of the things I just want to pick
up on if I may at page 352 is in the second paragraph there.
T h e q u e s t i o n o f t h i s v a l u e . Wa s i t a g o o d o r a b a d c o n t r a c t
20

was taken up and what Ms Luthuli stated – it is recorded at the bottom
of that paragraph?

Is that the handover report had to reflect that the

Board had considered whether or not the contract was a bad one and
had concluded that the contract was not good at this time. Do you see
that?
M R PA M E N S K Y : I s e e t h a t .

Page 40 of 156

31 OCTOBER 2019 – DAY 186
ADV HOFMEYR:

Now we did look at the Audit and Risk Committee

Report a moment ago. One that you do not recall having received, but
w e l o o k e d a t w h a t i t s a i d a b o u t t h i s r e p o r t a b l e i r r e g u l a r i t y. A s I r e a d i t .
It did not say anything about the Board having concluded that it was
not a good contract. Do you agree with my reading?
M R PA M E N S K Y : I a g r e e w i t h y o u r r e a d i n g . T h i s w a s n o t d i s c l o s e d i n
that handover report that you may – that you read out.
ADV HOFMEYR:

As a member of the new Board would you have

wanted to know this?
10

M R PA M E N S K Y :

Of course.

E x c u s e m e m a ’ a m , e x c u s e m e C h a i r, I

think they – I think we are duty-bound to know it, the Chief Executive
the CFO, Company Secretary and the remaining Directors are dutybound to inform us of this information and what transpired.
ADV HOFMEYR:

It is even included at 353 as part of the resolutions

coming from that meeting.

Yo u w i l l s e e u n d e r p a r a g r a p h 2 t h e r e

Ladwaba Mzwai Attorneys and the Company Secretary would prepare a
summary and final resolution on the discussions and decisions around
the New Age sponsorship contract for signing by the Chairman of the
Board, and the Chairman of the Audit & Risk Committee for inclusion in
20

the handover report to the new Board, do you see that?
M R PA M E N S K Y :

I do.

ADV HOFMEYR:

As it so happened, at least on the basis of the

documents we have been able to source it doesn’t appear that, that
happened, does it?
M R PA M E N S K Y :

No, not at all.

Page 41 of 156

31 OCTOBER 2019 – DAY 186
ADV HOFMEYR:
m a y.

Thank you.

L e t ’s r e t u r n t o y o u r a ff i d a v i t t h e n i f w e

W e w e r e a t p a g e 8 o f y o u r a ff i d a v i t , p a r a g r a p h 2 0 , i t i s f r o m

paragraph 20 that you talk about your disclosure of interest at the 16
January meeting, but we have already had your evidence that the one
thing that certainly wasn’t discussed at that meeting was the TNA
contract, correct?
M R PA M E N S K Y : C o r r e c t .
ADV HOFMEYR:

And then if you go over to page 9, you deal there at

paragraph 22 with an aspect that you have already addressed, but I
10

would like to give you an opportunity to do so again.

Yo u i n d i c a t e a t

paragraph 22 that when you met with the Commission you were asked
in particular whether you had sought nomination to the Eskom Board at
the instance of or discussed your appointment with any member of the
G u p t a f a m i l y, a n d w h a t w a s y o u r a n s w e r t o t h a t ?
M R PA M E N S K Y :
ADV HOFMEYR:

No.
Thank you. And then over the page at page 10 is

where you start to deal with this contract, and your involvement in it.
S o I w o u l d l i k e t o s t a r t a t p a r a g r a p h 2 3 t h e r e i f w e m a y, y o u s a y a t
paragraph 23:
20

“When I joined the Eskom Board I was aware that the
New Age, or TNA was a newspaper in circulation...”
Yo u s a y, “ I w a s n o t m y s e l f a r e a d e r. ” d i d y o u e v e r r e a d i t ?
M R PA M E N S K Y :

Ye s , t h e y w e r e o n a l l t h e a e r o p l a n e s s o y o u k n o w

occasionally on the plane you would pick it up, maybe a dozen, maybe
two dozen at best, but I mean it was all in the aeroplanes when you

Page 42 of 156

31 OCTOBER 2019 – DAY 186
used to travel.
ADV HOFMEYR:

T h e y w e r e a l s o d r o p p e d o ff a t E s k o m , d i d y o u e v e r

pick up one there?
M R PA M E N S K Y : N o .
ADV HOFMEYR:

O k a y, w h a t n e w s p a p e r s d i d y o u r e a d ?

M R PA M E N S K Y :

M o r e t h e B u s i n e s s D a y.

ADV HOFMEYR:

Were you a reader of the Mail & Guardian at all?

M R PA M E N S K Y :

No.

ADV HOFMEYR:
10

There were two Mail & Guardian reports in October

and November of 2014, I accept that you may not have read them but I
w o u l d l i k e t o t a k e y o u t o t h e m i f I m a y.

They are in your bundle at

page 234. So the first one was published on the 24th of October 2014,
it talks about the R43 million New Age deal raises eyebrows over the
f o r m e r C h i e f E x e c u t i v e ’s a l l e g e d r o l e , a n d t h e s e c o n d p a r a g r a p h s a y s :
“Eskom is in an uproar after recently department interim
Chief Executive Colin Matjela allegedly disregarded
internal legal advice and approved a budget-busting R43
million New Age Business Breakfast sponsorship.”
It goes on and gives details about how there had been no
20

whistleblower report and the clauses had been removed against
E s k o m ’s c o m m e r c i a l i n t e r e s t s a n d t h e r e w a s n o e x i t c l a u s e a s a
consequence for Eskom.

Is this reporting in the public domain

something you were aware of when you took up the position on the
Board?
M R PA M E N S K Y :

No.

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31 OCTOBER 2019 – DAY 186
ADV HOFMEYR:

T h e r e w a s a f u r t h e r a r t i c l e a m o n t h l a t e r, y o u w i l l

f i n d t h a t a t p a g e 2 3 7 , a n d i t ’s r e a l l y a . . . ( i n t e r v e n e s ) .
CHAIRPERSON: Did you say 237?
ADV HOFMEYR:

2 3 7 , i n d e e d C h a i r.

CHAIRPERSON: Thank you.
ADV HOFMEYR:

T h i s i s a f o l l o w u p , i t ’s t a l k i n g a b o u t t h e a l l e g a t i o n s

of the interim Chief Executive Matjila, having disregarded internal legal
advice and allegedly approved the budget busting sponsorship.

It

t a l k s a b o u t B o a r d M e m b e r s w h o h a v e b e e n p u s h i n g f o r M r M a t j i l a ’s
10

censure but they have resisted a last-ditch attempt, this is in the week
o f t h e 2 8 t h o f N o v e m b e r, b y o t h e r B o a r d M e m b e r s t o p r e v e n t t h e
irregularity being disclosed in the interim financial statements. Over the
page there is reporting on the fact that Sizwe & Ntsaluba Gobodo, SNG
as we are referring to it, had reported the irregularity but as I
understand your evidence you were not aware of any of this?
M R PA M E N S K Y :

No I was not.

ADV HOFMEYR:

N o w w e c a n t h e n g o b a c k t o p a g e 1 0 , i f w e m a y, o f

o u r a ff i d a v i t . P a r a g r a p h 2 4 t h e r e y o u s a y y o u h a d h e a r d a b o u t t h e T N A
business, the breakfast briefings which you understood to be a forum
20

on the SABC through which stakeholders could be engaged or
companies could procure a public platform.

Did you ever watch the

Business Briefings?
M R PA M E N S K Y :

Pre that time no I did not but it was well publicised.

ADV HOFMEYR:

What was well publicised?

M R PA M E N S K Y :

That you knew there was this TNA breakfast and it

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31 OCTOBER 2019 – DAY 186
was on 702 and it was a platform to engage.
ADV HOFMEYR:

Did you know that it was mired in controversy as

well?
M R PA M E N S K Y :

No, not at all.

ADV HOFMEYR:

Not at all?

M R PA M E N S K Y :

Not at all.

ADV HOFMEYR:

So you just were aware that these briefings were

going on?
M R PA M E N S K Y :
10

There were these 10A breakfast briefings, you used

to know that they were once a month and they were on the breakfast
time, where it was on SABC 2, and most people like myself were either
driving to work or at work.
ADV HOFMEYR:

Ye s , w e h a v e h a d e v i d e n c e a b o u t t h e t a r g e t m a r k e t

of the 49M campaign and whether these business breakfasts were
reaching that target market.
M R PA M E N S K Y :

What is – what was the 49M campaign.

That was a campaign according to my understanding

w a s a n e n e r g y e ff i c i e n c y c a m p a i g n w h i c h w a s t o i n f o r m t h e p u b l i c a n d
the general to save electricity and how to utilise electricity more
e ff e c t i v e l y w i t h i n t h e e n v i r o n m e n t , t h a t w a s m y u n d e r s t a n d i n g .
20

ADV HOFMEYR:

Did you have any understanding of its target group?

M R PA M E N S K Y :

No I did not.

ADV HOFMEYR:

Yo u s a y t h a t y o u d i d n ’ t w a t c h t h e b r e a k f a s t s p r i o r t o

your appointment to the Board, does that mean you watched them
afterwards?
M R PA M E N S K Y :

I watched snippets afterwards maybe five/ten

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31 OCTOBER 2019 – DAY 186
minutes to actually see what was this all about?
ADV HOFMEYR:

When abouts was that? Mr Pamensky I know you are

very keen to find specific dates, so let me help you, what I am
interested in is had you watched one by the time you gave your
decision on the round robin resolution?
M R PA M E N S K Y :
ADV HOFMEYR:

No.
And how long after February 2015 might you have

looked at one?

10

M R PA M E N S K Y :

Within six months or so.

ADV HOFMEYR:

Was it one where Eskom was a sponsor or not?

M R PA M E N S K Y :

I cannot recall.

ADV HOFMEYR:

So ...(intervenes).

M R PA M E N S K Y :

B u t w h a t I d o r e c a l l , s o r r y C h a i r, w h a t I d o r e c a l l i s I

didn’t see any banners, I saw the TNA like it was behind where you had
a like a stage and you had the SABC presenter and then you had
various people talking and then the public interacting.
ADV HOFMEYR:

So you didn’t see Eskom banners?

M R PA M E N S K Y :

I didn’t see any Eskom advertising.

ADV HOFMEYR:
20

And did you make any enquiries at any point about

h o w E s k o m ’s b r a n d i n g w a s t o b e a d v a n c e d a t t h e s e b r e a k f a s t s ?
M R PA M E N S K Y :
ADV HOFMEYR:
involved.

No I did not.
So let me tell you a little bit about what that

It involved a 49M logo being placed on that screen that you

referred to having been dominated by the TNA and beyond that not
much else, is this the first time you’re hearing that?

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31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y :
ADV HOFMEYR:

That is correct and very surprising.
There was also an address by the sponsor at the

breakfast, sort of five minutes at the beginning, but that was an
address that was not going to be aired, it was just to the people in the
room.

Do you think that would have been a useful mechanism for

promoting the Eskom 49M brand?
M R PA M E N S K Y :

Ma’am I am not an expert in that area but common

s e n s e j u s t t e l l s m e n o , i t ’s j u s t p e o p l e w i t h i n t h a t a r e a , a n d I w o u l d
have assumed that it was the whole of the SABC viewership would have
10

seen that element.
ADV HOFMEYR:
be aired.

That was never part of the contract, that that would

Did you watch any of Mr Pretorius’ evidence earlier this

week, before the Commission?
M R PA M E N S K Y :

Ye s I d i d .

ADV HOFMEYR:

A n d M r C h o e u ’s e v i d e n c e o f y e s t e r d a y a n d b e f o r e ?

M R PA M E N S K Y :

Ye s a n d w h e n I m e a n I d i d I l i s t e n e d t o c e r t a i n

s n i p p e t s b u t t h a t ’s a b o u t i t .
ADV HOFMEYR:

Yo u m i g h t t h e n b e a w a r e p a r t i c u l a r l y f r o m M r

Pretorius’ evidence that his ultimate take on the value of these
20

business breakfasts was that they made no financial sense.

Do you

have any basis on which to dispute that conclusion?
M R PA M E N S K Y :
ADV HOFMEYR:

No I don’t.
He queried whether the placing of the 49M logo on

the screen was actually having any impact for the campaign.

He made

a few points there, he said the colours aren’t even Eskom colours, the

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31 OCTOBER 2019 – DAY 186
4 9 M b r a n d w a s b l a c k a n d y e l l o w, E s k o m i s b l u e a n d w h i t e , h e a l s o
made the point that their research show that a lot of people thought
49M was a radio station. If you had known all of those facts would you
have been sceptical about the utility of this medium to promote the 49M
campaign?
M R PA M E N S K Y :
ADV HOFMEYR:

Certainly would.
The other point that Mr Pretorius made in his

e v i d e n c e w a s t h a t i t g o t i n c r e a s i n g l y d i ff i c u l t e v e n t o f i l l t h e t a b l e s o f
the attendees at the breakfast. I need to give you a little bit of insight
10

there, part of the deal that Eskom got by paying R1.2 million per
breakfast was that they got two free tables of the attendees at the
b r e a k f a s t , b u t M r P r e t o r i u s ’ e v i d e n c e w a s i t g o t i n c r e a s i n g l y d i ff i c u l t t o
get

people

to

come

as

attendees

surrounding the business breakfasts.

because

of

the

controversy

If you had known that would you

have been concerned about the value to Eskom?
M R PA M E N S K Y :
ADV HOFMEYR:
s t a ff m e m b e r s .

Ye s I w o u l d o b v i o u s l y b e c o n c e r n e d .
H’mm, he said they were eventually populated by
I n M r C h o e u ’s e v i d e n c e y e s t e r d a y h e m a d e t h e p o i n t

that the SABC was actually involved in another aspect of the 49M
20

campaign, what he explained to us was that there were sessions where
the Minister of Public Enterprises would go out on a Saturday and
c o l l e c t a g r o u p o f p e o p l e t o g e t h e r, m a k e r e p r e s e n t a t i o n s t o t h e m a b o u t
the 49M campaign, why it was necessary to conserve electricity and
then SABC would be there covering it, and then would track him into
the houses of people in the nearby vicinity and watch him change a

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31 OCTOBER 2019 – DAY 186
light bulb to an energy saving light bulb and Mr Choeu gave us
evidence that that was at no cost to Eskom, to have that footage by
SABC. Again Mr Pamensky if you had known that that was available to
Eskom as a method to get out its 49M message would you have
regarded the R1.2 million in the business breakfasts as commercial
sense for Eskom to engage in?
M R PA M E N S K Y :

Ma’am I would like to put a pause in that and when

you hear my evidence of my reasoning, I can’t determine the value, I
am not an expert in that element, so I can’t tell you what I determine
10

the value, I can tell you why I made my decision, because I believed we
needed to get commercial value, what that commercial value is I can’t
c o m m e n t b u t w h e n w e g e t t o t h a t I w i l l e x p l a i n m o r e , s o r r y.
ADV HOFMEYR:

Thank you.

No I accept that, I guess what I am

asking you to justexpose is a detailed engagement with the Minister of
Public Enterprises talking about the 49M campaign and encouraging
people to take energy saving steps is one method to get the message
out, as compared with a business breakfast where the most exposure
Eskom gets is a 49M on a screen behind the presenters. If that is what
you choose in between and you are spending public money which do
20

you think you would choose to spend the money on?
M R PA M E N S K Y :

M a ’ a m i t i s a h a r d q u e s t i o n t o a n s w e r, I a m n o t a n

expert in that element, I have no idea how many people are going to
look at the Minister with those people changing light bulbs and I have
no idea of the size of the 49M, I am truly an accountant, so I haven’t
g o t c r e a t i v i t y, m y a p o l o g i e s , s o I a m n o t s u r e I c a n g i v e y o u a d e f i n i t i v e

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31 OCTOBER 2019 – DAY 186
a n s w e r.
ADV HOFMEYR:

O k a y, w e m a y h a v e t o p r o b e t h a t f u r t h e r w h e n i t w a s

t h e B o a r d ’s o b l i g a t i o n t o a s s e s s t h e c o m m e r c i a l v a l u e o f e n t e r i n g i n t o
the contract.
M R PA M E N S K Y :
ADV HOFMEYR:

Ye s .
Chair I note that it is teatime, if it is convenient to

take the break?
CHAIRPERSON:

Ye s , l e t ’s t a k e t h e t e a a d j o u r n m e n t a n d w e w i l l

r e s u m e a t 11 : 3 0 . W e a d j o u r n .
10

REGISTRAR:

All rise.

I N Q U I RY A D J O U R N S
I N Q U I RY R E S U M E S
CHAIRPERSON: Let us proceed.
A D V H O F M E Y R : T h a n k y o u C h a i r. C h a i r o v e r t h e t e a a d j o u r n m e n t m y
learned friend who is the legal representative of Mr Pamensky drew
something to my attention which in fairness I do want to clarify with
...(intervenes).
C H A I R P E R S O N : Ye s .
A D V H O F M E Y R : M r P a m e n s k y.
20

C H A I R P E R S O N : O k a y.
ADV HOFMEYR:

Mr Pamensky when we were dealing with the

Provisions of the PFMA you will have that in the Legislation Bundle
which you had put away and I said we might need to take out again.
W e w e r e l o o k i n g a t t h e S e c t i o n i n v o l v i n g f i n a n c i a l m i s c o n d u c t . Yo u w i l l
recall that?

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31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y : Ye s m a ’ a m .
ADV HOFMEYR: Inadvertently I must say as I was dealing with Section
83 and reading it out to you I indicated that the accounting authority for
a public entity commits an act of financial misconduct if and then I
understand from my learned friend I might have jumped straight into
sub a, and b. The import of me having done that is I did not identify
that there is a fault requirement attached to that provision.

It is that

the accounting authority commits an act of financial misconduct if it
wilfully or negligently fails in the respects we discussed.
10

And I just

want you to be clear on that so that there is no unfairness to you.
There is a fault requirement for financial misconduct and there is also a
f a u l t r e q u i r e m e n t u n d e r t h e o ff e n c e s c r e a t e d i n S e c t i o n 8 6 .

Do you

understand that?
M R PA M E N S K Y : I u n d e r s t a n d w h a t y o u s a y i n g .
ADV HOFMEYR: Thank you. I would then like to move back into your
a ff i d a v i t a t p a g e 1 0 .

Yo u w i l l r e c a l l t h i s i s t h e p a r t o f y o u r a ff i d a v i t

where you start to get into the details of the New Age contract and we
had been talking about your background to the New Age and the
business briefings. And what you go on to discuss at page 25 was the
20

point about the irregular expenditure. Sorry 25. Paragraph 25 on page
10.

And you make the point there I think you testified about earlier

which is that you would have noticed if the irregular expenditure
amount of R43 million had been disclosed in the November 2014
financials insofar as it was linked to TNA. Is that correct?
M R PA M E N S K Y :

That is correct.

The report said R43 million

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31 OCTOBER 2019 – DAY 186
sponsorship contract.
ADV HOFMEYR:

Right.

So we go on at paragraph 26 to your

statement there that you first learned that Eskom had concluded its
contract with TNA in respect of the breakfast briefings on 3 February
when you received a round robin resolution. Is that correct?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR:

At that point did you make the link between the

reportable irregularity you had seen and the fact that this was the
contract?
10

M R PA M E N S K Y : Ye s I d i d .
ADV HOFMEYR: Right. Let us then – we will go to the resolution in a
moment but I would like to pick up at paragraph 27. Will you read for
us the first sentence of that paragraph?
M R PA M E N S K Y : “ I t i s u n d e r s t o o d t h a t t h e m a t t e r i s u r g e n t . ”
ADV HOFMEYR: Well it was understood that the matter was urgent.
M R PA M E N S K Y : C o r r e c t .
ADV HOFMEYR: Who was that understood by?
M R PA M E N S K Y : B y m y s e l f .
ADV HOFMEYR:

20

So it could have read, I understood that the matter

was urgent.
M R PA M E N S K Y :

Sorry I understood the matter was urgent based on

the

irregularity

reportable

and

the

reporting

requirements

to

...(indistinct).
ADV HOFMEYR: Now would that have been the case? Because the 30
days within which management has to respond had passed by February

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31 OCTOBER 2019 – DAY 186
2015?
M R PA M E N S K Y :

My assumption at that point in time when I received

this resolution was that the prior Board did not deal with it. I assumed
they would have got an extension or they did not get an extension
therefore we had to deal with it.
ADV HOFMEYR: Well why did you make that assumption?
M R PA M E N S K Y :

Because our reports were raggedy and definitely

needs to deal with.
ADV HOFMEYR: Did you ...(intervenes).
10

M R PA M E N S K Y : Yo u h a v e t o s o r r y m a ’ a m . W i t h t h e r e p o r t i r r e g u l a r i t y
you need to reply and you need to determine what the Board is doing
and what its decision was.
ADV HOFMEYR: Let us go to the resolution that was circulated to you
if we may? It is at page 144 of Exhibit MM3.
M R PA M E N S K Y : Ye s .
ADV HOFMEYR:

Do you accept that this round robin resolution

nowhere refers to the matter being urgent?
M R PA M E N S K Y : Ye s I d o .
ADV HOFMEYR: But despite that you would come to some conclusion
20

that it was urgent?
M R PA M E N S K Y : N o m a ’ a m . W h e n I r e a d t h e S N G r e p o r t a n d r e a l i s e d
– sorry the SNG report together with the legal report it was in relation
to that reportable irregularity that had to be dealt with in my mind.
A D V H O F M E Y R : Yo u d i d n o t s e e c l a r i f i c a t i o n a s t o w h e t h e r i t h a d b e e n
dealt with in accordance with the 30 day response requirement?

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31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y :

No I did not but I believe it was self-explanatory is

why we got this information from SNG and the lawyers.
ADV HOFMEYR:

Well the reasons given do not actually highlight the

reportable irregularity do they?
M R PA M E N S K Y : N o t h e y d o n o t .
ADV HOFMEYR:

So let us look at what was disclosed to you as a

s u m m a r y o f t h e f a c t s . W e a r e a t p a g e 1 4 4 . Yo u f i r s t t o l d t h a t t h e r e i s
a contract that has been concluded, do you see that in paragraph 1?
M R PA M E N S K Y : Ye s .
10

ADV HOFMEYR:

Yo u t h e n a r e t o l d t h a t t h e r e w a s a n A u d i t a n d R i s k

Committee query and there was a review by the external auditors.
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR:

Yo u t h e n t o l d t h a t S N G c o n d u c t e d a r e v i e w a n d

compiled a report and that is presented to ARC and attached?
M R PA M E N S K Y : Ye s c o r r e c t .
ADV HOFMEYR:

And that ARC tabled the report at the 8 December

Board meeting, do you see that?
M R PA M E N S K Y : I s e e t h a t m a ’ a m .
ADV HOFMEYR: We have looked at the prior minutes which you would
20

not have been privy to at the time.

That report was in fact tabled

earlier than the 8th of December but I am just indicating that to you.
Yo u w o u l d n o t I t a k e i t h a v e k n o w n a t t h e t i m e t h a t t h a t w a s e r r o n e o u s ?
M R PA M E N S K Y : C o r r e c t .
ADV HOFMEYR: And there is an electronic mail message you were told
about sent to the Chairman raising a number of allegations against two

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31 OCTOBER 2019 – DAY 186
Board Members at the time.

Yo u t h e n t o l d t h a t t h e i n t e r i m C h i e f

Executive had submitted representations to the Board clarifying and
explaining his rationale for concluding the contract. And then you told
that the Board has the opportunity to review the representations
together with all the documents which are attached to the round robin
resolution regarding the contract. And then this is going to be in a
sense the text of the resolution what follows. Is that as you understand
this document?
M R PA M E N S K Y : Ye s m a ’ a m .
10

ADV HOFMEYR:

Okay can you help me with what that first bullet is

saying?
M R PA M E N S K Y :

“The parties that were involved in the matter

are no longer within the sphere of Eskom.’
ADV HOFMEYR: Let us stop there.
M R PA M E N S K Y : “ I n o t h e r w o r d s … ”
A D V H O F M E Y R : Ye s .
M R PA M E N S K Y :

“Both Mr Choeu and the acting CEO are no

longer within Eskom.”
ADV HOFMEYR: That was false at the time, did you know that?
20

M R PA M E N S K Y : N o I d i d n o t .
ADV HOFMEYR:

But you understand it to mean Mr Choeu and Mr

Matjila are no longer with Eskom?
M R PA M E N S K Y : C o r r e c t .
ADV HOFMEYR: Right let us go on.
M R PA M E N S K Y : S o r r y m a ’ a m d o y o u w a n t m e t o r e a d ?

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31 OCTOBER 2019 – DAY 186
A D V H O F M E Y R : Ye s p l e a s e t h e s e c o n d s e n t e n c e .
M R PA M E N S K Y : O h .
“This emulates from the rotation of a former Board which
t o o k e ff e c t o n 11 D e c e m b e r 2 0 1 4 a n d t h e a p p o i n t m e n t o f
a permanent Chief Executive.”
ADV HOFMEYR: Okay let us stop there.
M R PA M E N S K Y : H ’ m m .
A D V H O F M E Y R : Yo u s e e I s t r u g g l e w i t h t h e f i r s t s e n t e n c e b e c a u s e t h e
second sentence says that the reason why the parties are not involved
10

is because of a rotation of the former Board. Now that can only reply –
apply to Mr Matjila, can it not?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR: So what does the first sentence mean then in the light
of the second sentence?
M R PA M E N S K Y :

The parties – I broke the sentence up in my mind.

The parties were the parties to the SNG Report.

Yo u h e a r d a l l a b o u t

the acting CEO and Mr Choeu. So those were the parties involved in
this transaction.
ADV HOFMEYR: And they had left the sphere because of a rotation of
20

the Board?
M R PA M E N S K Y : I d i d n o t r e a d i t i n t h a t w a y. I r e a d i t t h a t t h e p a r t i e s
had left the sphere of Eskom the reason why the acting CEO was no
longer there is because of the rotation of the Board. That is how I read
it ma’am.
ADV HOFMEYR:

So when you were deciding on this resolution you

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31 OCTOBER 2019 – DAY 186
though Mr Choeu was no longer in the employ of Eskom?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR: And the last sentence.
M R PA M E N S K Y : “ T h e p a r t i e s i n v o l v e d h a v e d i v e r g e n t v i e w s o n
the specific aspects of the matter and as such scarce
resources would have to be deployed to bring these
c o n t e n t i o u s m a t c h e s t o f i n a l i t y. ”
ADV HOFMEYR: What does that mean Mr Pamensky?
M R PA M E N S K Y :
10

In my mind that means that the acting CEO in his

representations interpreted the delegation of authority to fall under an
investment as opposed to what the auditors and the legal opinion
confirmed that it was not – it was a sponsorship.
ADV HOFMEYR: So is this the same parties Mr Matjila and Mr Choeu?
M R PA M E N S K Y : N o t h i s w o u l d p u r e l y b e t h e a c t i n g C E O .
A D V H O F M E Y R : S o t h e n i t s h o u l d h a v e b e e n i n t h e s i n g u l a r.
M R PA M E N S K Y :

Ma’am I am not good at English but if you say it

should be in the ...(intervenes).
ADV HOFMEYR: Well we are talking about one person.
M R PA M E N S K Y : I a m t a l k i n g a b o u t o n e p e r s o n .
20

ADV HOFMEYR:

Ye s .

I h a v e g r e a t d i ff i c u l t y w i t h t h i s p a r a g r a p h a n d

that is why I am seeking your guidance on it. Because what appears to
maybe be Mr Matjila and Mr Choeu in the first sentence then it is not
both of them in the second sentence because that can only relate to Mr
Matjila and then we back to both of them in the third sentence in a
context which just does not make sense if you replying – you were

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speaking to both of them.
M R PA M E N S K Y :

Ma’am when I read the opinion what it shows me is

t h a t t h e p a r t i e s w i t h t h e d i v e r g e n t v i e w w a s t h e d i ff e r e n c e b e t w e e n t h e
auditors and the acting CEO on his interpretation of the investment or
sponsorship.
ADV HOFMEYR: Right.
CHAIRPERSON:

Were those the parties that you thought they were

talking about when they said the parties involved are not with Eskom?
M R PA M E N S K Y : T h e – w h e n t h e y s a i d . . . ( i n t e r v e n e s ) .
10

CHAIRPERSON: Or are no longer with Eskom.
M R PA M E N S K Y :

Ye s t h e p a r t i e s a r e n o t w i t h E s k o m i t w a s m y

understanding Mr Choeu and the acting CEO were no longer within the
sphere of Eskokm.
C H A I R P E R S O N : O h o k a y.
M R PA M E N S K Y : T h e t w o g e n t l e m a n .
CHAIRPERSON: Ja which was not 100% correct.
M R PA M E N S K Y : Ye s b u t m y u n d e r s t a n d i n g t h e r e w a s t h e p a r t i e s w e r e
always the two people who were in the report.
C H A I R P E R S O N : Ye s .
20

M R PA M E N S K Y : S o t h e t w o p a r t i e s a r e g o n e t h e y b o t h w e r e n o t t h e r e
a n y m o r e S i r.
C H A I R P E R S O N : O k a y. O k a y.
ADV HOFMEYR:

But the parties by the last sentence become the

auditors and Mr Matjila?
M R PA M E N S K Y : T h a t i s c o r r e c t .

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31 OCTOBER 2019 – DAY 186
ADV HOFMEYR: The second bullet.
M R PA M E N S K Y : “ C o n s i d e r i n g t h e r e p r e s e n t a t i o n s m a d e b y t h e
then

interim

CE

there

exists

a

d i ff e r e n c e

of

interpretation regarding the provisions of the company
delegation of authority that needs to be reviewed and
clarified further in order to close any gaps which may be
present.”
ADV HOFMEYR: What was your understanding of that bullet?
M R PA M E N S K Y : M y u n d e r s t a n d i n g w a s t h a t M r C o l l i n M a t j i l a t h o u g h t i t
10

was an investment committee decision and falled within the delegation
under the investment criteria and the auditors then said it was a
sponsorship therefore they must correct it and clarify and fix it up that
it actually is a sponsorship.
ADV HOFMEYR:

Well can we unpack that a little bit?

Do you know

w h a t t h e e x t e r n a l l a w y e r s t h o u g h o f M r M a t j i l a ’s j u s t i f i c a t i o n f o r
entering into this contract as an investment?
M R PA M E N S K Y : Ye s .
ADV HOFMEYR: What did they think of that?
M R PA M E N S K Y :
20

They disagreed with it.

They agreed with the same

interpretation as SNG.
ADV HOFMEYR: And the internal lawyers of Eskom what view did they
t a k e o f t h e j u s t i f i c a t i o n o ff e r e d b y M r M a t j i l a ?
M R PA M E N S K Y :

They also did not accept that undertaking as I

understand. That was the one from Mr Adams.
ADV HOFMEYR: Correct.

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31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y : Ye s .
ADV HOFMEYR: So what ambiguity was there?
M R PA M E N S K Y :

I n M r M a t j i l a ’s m i n d h e m u s t h a v e a n a m b i g u i t y b u t

the rest of Eskom and everyone else clarified it.
ADV HOFMEYR:

E x a c t l y.

So Mr Matjila who is now out of Eskom is

the only person who holds the view that this is an investment?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR:

The internal Eskom lawyers say there is no

j u s t i f i c a t i o n f o r t h a t v i e w, c o r r e c t ?
10

M R PA M E N S K Y : C o r r e c t .
ADV HOFMEYR: The external lawyers say there is no justification for
t h a t v i e w, c o r r e c t ?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR: And SNG says there is no justification for that view?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR: Why was there any ambiguity that then needed to be
cleared up with revisions being made to the delegations of authority?
M R PA M E N S K Y :

To m a k e i t m o r e s p e c i f i c a n d c l e a r e r a n d p u t i t i n

writing in there to say this does not fall within an investment
20

e n v i r o n m e n t o r s o m e t h i n g t o t h a t e ff e c t m a ’ a m .

Clarity is maybe

making it more clear in the DOA of the document itself.
A D V H O F M E Y R : M r P a m e n s k y.
CHAIRPERSON: I am sorry can I ask you to repeat that answer? I did
not fully understand it.
M R PA M E N S K Y : Ye s . Ye s C h a i r s o r r y.

May I just ask her to repeat

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31 OCTOBER 2019 – DAY 186
t h e q u e s t i o n s o I g e t m y t r a i n o f t h o u g h t a g a i n ? S o r r y.
C H A I R P E R S O N : O k a y.
ADV HOFMEYR:

C e r t a i n l y.

That will require me to remember the

questions.
CHAIRPERSON: I will help you if you need help.
ADV HOFMEYR: No, no, thank you Chair I am indebted. The question
was, if all the lawyers around the table agreed that there was no
ambiguity in the delegation of authority and that Mr Matjila was simply
wrong. Why did anything have to be done to clear this up?
10

M R PA M E N S K Y :

Oh so in future these problems do not arise.

So in

other words his – if it is not an investment decision you need to write it
in the delegational flow to these issues do not arise again.

My

i n t e r p r e t a t i o n o f t h a t i s y o u k n o w h e m a y n o t b e a l a w y e r, h e m a y n o t
be an accountant so you need to make it clear for the incoming or the
new CEO and the delegations going for that clearly defines that a
sponsorship does not fall within an investment criteria. and the
delegations going for that clearly defines that a sponsorship does not
fall within an investment criteria.
CHAIRPERSON: But to justify – clarifying that for the future the Board
20

would have had to take the view that although the lawyers and SNG
d i s a g r e e d w i t h M r M a t j i l a ’s i n t e r p r e t a t i o n h i s i n t e r p r e t a t i o n c o u l d b e
right or was understandable.
know what I mean.

It was not just completely out.

If you

T h e – o t h e r w i s e i f y o u h a v e a l o o k a n d y o u s a y,

look it is quite clear we do not know why he thinks there is justification.
Then there is no need to put in anything for the future.

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31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y :

No Chair he – his representations were very

convincing on how he interpreted.
C H A I R P E R S O N : Ye s .
M R PA M E N S K Y : T h e I n v e s t m e n t C o m m i t t e e .
C H A I R P E R S O N : Ye s .
M R PA M E N S K Y : S o I f e l t t h a t t h a t n e e d e d t o b e c l e a r e d u p .
C H A I R P E R S O N : Ye s .
M R PA M E N S K Y : A n d a c t u a l l y w r i t t e n i n t h e D O A s o n o - o n e c o m e b a c k
and misinterpret what a corporate social responsibility sponsorship is
10

about.
CHAIRPERSON:
what I am saying.

Okay I think that is important because it speaks to
In other words speaking for yourself you say even

though you may have disagreed with his interpretation you understood
where he was coming from with his interpretation and you could
u n d e r s t a n d m a y b e h o w m i g h t h a v e a d o p t e d t h a t i n t e r p r e t a t i o n . Yo u j u s t
did not want then somebody else to adopt the same interpretation for
the future?
M R PA M E N S K Y : T h a t i s c o r r e c t C h a i r.
CHAIRPERSON: So you are not dismissing it completely as madness?
20

MR

PA M E N S K Y :

No

not

at

all.

It

was

a

very

compelling

...(intervenes).
C H A I R P E R S O N : Ye s .
M R PA M E N S K Y : I t w a s a v e r y c o m p e l l i n g – w h e n I r e a d i t i t w a s v e r y
compelling discussion why he interpreted of investment. I did not agree
with it.

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31 OCTOBER 2019 – DAY 186
C H A I R P E R S O N : Ye s .
M R PA M E N S K Y : A n d t h e r e f o r e I w a n t e d t o m a k e s u r e a s i t w a s i n t h e
resolution that this problem does not arise again so it is clearly
defined.
CHAIRPERSON:

H ’ m m o k a y.

Was that – do you know whether some

members of the Board had the same understanding towards his
interpretation as yourself or is that something you do not know?
M R PA M E N S K Y : C h a i r I n e v e r s p o k e t o a n y o f t h e B o a r d M e m b e r s s o I
d o n o t k n o w.
10

C H A I R P E R S O N : Ye s o k a y. O k a y.
ADV HOFMEYR:

M r P a m e n s k y I u n d e r s t a n d f r o m y o u r a ff i d a v i t t h a t

you never actually got a copy of the third contract that was entered into
t h a t y o u w e r e b e i n g a s k e d t o r a t i f y, i s t h a t c o r r e c t ?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR: My learned friend is going to find us a copy of it. It is
in the Pretorius bundle and that is MM1A. It is the first of his bundles.
M R PA M E N S K Y : S o r r y w h a t p a g e m a ’ a m ?
ADV HOFMEYR: At page 193.
M R PA M E N S K Y : S o r r y a g a i n ?
20

ADV HOFMEYR:

193.

Do you think you should have seen the

agreement that you were being asked to ratify before ratifying it?
M R PA M E N S K Y : N o m a ’ a m I d o n o t .
ADV HOFMEYR: Why not?
M R PA M E N S K Y :

Ma’am the annexures were not attached to the

documentation and the evidence was in the SNG Report which came to

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31 OCTOBER 2019 – DAY 186
the conclusion clearly that Mr Matjila – the acting CEO was in breach of
t h e – i t w a s i n c o n t r a v e n t i o n o f t h e d e l e g a t i o n o f a u t h o r i t y.

The

lawyers too did not read this TNA Contract and they were happy to give
their opinion to us so I had the same comfort from that ma’am.
ADV HOFMEYR:

Well they were put under extreme demands of

urgency in producing their report. And as I understand their report that
is part of the explanation given for not having had a chance to look at
the agreement. Do you accept that?
M R PA M E N S K Y : I a c c e p t t h a t b u t t h e y s t i l l c a m e t o a – t h e y s t i l l g a v e
10

a conclusion and an opinion they were comfortable to give that opinion
without represent – without seeing these contracts.
A D V H O F M E Y R : Ye s . M r P a m e n s k y t h e y w e r e n o t t h e B o a r d o f E s k o m
though who had various duties under the PFMA and otherwise and was
asked to decide whether to ratify a contract for R43 million. Is it your
evidence that you do not think it was necessary for the Board to see
the agreement they were being asked to ratify before they took that
decision?
M R PA M E N S K Y : Ye s i t i s m a ’ a m .
C H A I R P E R S O N : W e l l t h a t i s v e r y s u r p r i s i n g t o m e M r P a m e n s k y.

20

M R PA M E N S K Y : C h a i r w h e n I e x p l a i n m y m i n d s e t w h e n w e g e t t o h o w
I came to this decision.
C H A I R P E R S O N : Ye s .
M R PA M E N S K Y : I t h i n k i t w i l l o v e r c o m e t h a t . . . ( i n t e r v e n e s ) .
CHAIRPERSON: Whatever ...(intervenes).
M R PA M E N S K Y : Q u e s t i o n .

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31 OCTOBER 2019 – DAY 186
C H A I R P E R S O N : Ye s .
M R PA M E N S K Y : N u m b e r 1 a n d n u m b e r 2 I a m n o t a l a w y e r C h a i r s o
for me to read something with breached clauses and all of that.
CHAIRPERSON: Ja.
M R PA M E N S K Y : Yo u k n o w w o u l d b e m o r e t o t h e l a w y e r s t h a n m y s e l f
C h a i r.
C H A I R P E R S O N : Ye s . N o , n o t h a t i s f i n e . M a y b e w e w i l l d e a l – w e w i l l
talk further when we come to that point. But I would think that if you
are asked to ratify a contract you must have the contract in front of
10

you. I am happy to say maybe there may be exceptional circumstances
where maybe somebody might be justified in ratifying without seeing
provided certain conditions are met. I am not sure. But I would have
thought that if somebody – if a Board was asked to ratify anything
e v e r y m e m b e r w o u l d s a y, I n e e d t o s e e w h a t I a m r a t i f y i n g . B u t m a y b e
we can deal with it at a later time but Ms Hofmeyr might be wishing to
d e a l w i t h i t n o w.
A D V H O F M E Y R : T h a n k y o u C h a i r.
M R PA M E N S K Y : O k a y.
ADV HOFMEYR: Well let us just go to the contract if – because I think

20

it would have been useful to have seen at the time. It starts at page
193 as I said of Exhibit MM1A. And if you go over the page to page
194 it seems to me it might have been useful for the Members of the
Board to have read clauses 2 and 3 of this contract. Because clause 2
says:
“Eskom wishes to participate in the aims and objectives

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31 OCTOBER 2019 – DAY 186
of the TNA Media Limited through the sponsorship of the
business briefings”
Clause 3.
“The parties have agreed on the terms and conditions
applicable to such sponsorship which agreement the
parties wish to record in writing.”
Mr Pamensky do you think this contract is about sponsorships
when you read those two clauses?
M R PA M E N S K Y : Ye s I d o m a ’ a m .
10

ADV HOFMEYR: And Mr Matjila was the signatory to this contract, was
he not?
M R PA M E N S K Y :

The legal – the SNG opinion said he was the

signatory yes.
ADV HOFMEYR: Correct. And the reason I raise this is because of the
e a r l i e r p o i n t . W a s t h e r e a n y s u b s t a n c e a t a l l i n M r M a t j i l a ’s c o n t e n t i o n
that this was an investment if the opening two clauses of this
agreement say it is a sponsorship?
M R PA M E N S K Y :

The conclusion was drawn by the attorneys and by

the auditors that this was not a sponsorship agreement.
20

It was quite

c l e a r.
ADV HOFMEYR: Indeed.
M R PA M E N S K Y : I t a l s o s a i d t h e y m e n t i o n e d t h e c o n t r a c t i f I r e c a l l i n
the SNG where they say this is a sponsorship not an investment.
ADV HOFMEYR:

Mr Pamensky let me explain why I place some

significance on this.

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31 OCTOBER 2019 – DAY 186
CHAIRPERSON: Well Ms Hofmeyr I think Mr Pamensky might not have
understood your question. I think her question Mr Pamensky is whether
given the fact that this is what these clauses say and it is clear it is a
sponsorship. And given the fact that Mr Matjila signed this agreement
would there be any basis for anybody to say his interpretation that this
w a s a n i n v e s t m e n t m a k e s s e n s e ? Yo u h a d n o t s e e n t h e c o n t r a c t .
M R PA M E N S K Y : N o C h a i r.
C H A I R P E R S O N : Ye s .
M R PA M E N S K Y : I n e v e r a l s o e v e r s a i d – s o r r y, I n e v e r e v e r s a i d t h a t
10

his interpretation made sense but he made a compelling argument why
he found that an investment and why I felt that you need to make sure
going forward that this problem does not occur again.

I did not say I

a g r e e d w i t h t h i s o p i n i o n C h a i r s o r r y.
CHAIRPERSON:

Well Mr Pamensky I thought what you said was you

did not agree with his interpretation but when you read what he had to
say about his interpretation he made a compelling case. Now I am not
sure whether a compelling case is not a case where you say it makes
some sense.
M R PA M E N S K Y :
20

Sorry Chair his argument were it compelling his

argument made sense to me how he interpreted as an investment in his
mind but I did not buy it. Therefore his argument was compelling how
his mind was thinking what the investment is and how he made the –
how he interpreted it as an investment but I did not agree with it nor
did the auditors and that. So all I am trying to say was we needed to
make sure that the future people do not go and have a similar

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31 OCTOBER 2019 – DAY 186
interpretation to what he had.
CHAIRPERSON:

H’mm.

I think what Ms Hofmeyr sought to establish

f r o m y o u w a s w h e t h e r y o u w o u l d s a y t h e r e w a s s e n s e i n M r M a t j i l a ’s
interpretation given the two facts that are referred to earlier given the
clauses that make it clear it is a sponsorship and the fact that he was a
signatory to the agreement.

Whether you say there was sense in his

interpretation.
M R PA M E N S K Y :

Ye s I d o t h i n k t h e r e w a s s e n s e i n h i s i n t e r p r e t a t i o n

because he said the contract did say sponsorship but it is his
10

interpretation if I remember had to do with an investment and it was
getting value out of that contract.
CHAIRPERSON: H’mm.
M R PA M E N S K Y :

S o h e t o o k a d i ff e r e n t w o r d a n d h e s a i d y e s i t s a i d

s p o n s o r s h i p b u t h e i n t e r p r e t e d i t t h e o t h e r w a y C h a i r.
CHAIRPERSON: H’mm. Okay I do not know if I helped?
A D V H O F M E Y R : Yo u d i d i n d e e d C h a i r t h a n k y o u s o m u c h .
M R PA M E N S K Y : S o r r y C h a i r, s o r r y m a ’ a m .
ADV HOFMEYR:

No not at all.

Let me just clarify your evidence

because a moment ago you said I did not buy it.
20

M R PA M E N S K Y : Ye s . I d i d n o t b u y h i s i n t e r p r e t a t i o n t h a t i t w a s – f a l l s
under investment because in – that was a sponsorship element that was
applicable for a sponsorship.
ADV HOFMEYR:

So is it fair to say you were sceptical about his

justification?
M R PA M E N S K Y : Ye s I w o u l d s a y I w a s s c e p t i c a l a b o u t h i s j u s t i f i c a t i o n .

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31 OCTOBER 2019 – DAY 186
ADV HOFMEYR: If you did not buy it?
M R PA M E N S K Y : Ye s I w a s s c e p t i c a l a b o u t i t b u t . . . ( i n t e r v e n e s ) .
A D V H O F M E Y R : Yo u w e r e s c e p t i c a l .
M R PA M E N S K Y :

But it may – it was reasonable in my mind how he

made that interpretation. But I did not buy it.
ADV HOFMEYR: Mr Pamensky let us go back to page 145 if we may?
CHAIRPERSON: Of which bundle?
A D V H O F M E Y R : A p o l o g i e s C h a i r. W e b a c k i n M r P a m e n s k y ’s b u n d l e
MM3.
10

M R PA M E N S K Y : C a n I c l o s e t h i s m a ’ a m ?
ADV HOFMEYR: For now yes. There is a last bullet on page 145 and
again I would like you to take me through what that bullet means?
M R PA M E N S K Y : M a ’ a m i s t h a t t h e c o s t i n t i m e ?
A D V H O F M E Y R : Ye s c o r r e c t .
M R PA M E N S K Y :

“The cost and time required to pursue this

matter in contract – in contrast with matters facing
Eskom and the Board. The company finds itself in a
highly challenging phase of its existence. In light of this
the company resources need to be dedicated to issues
20

which have immediate and fundamental bearing on the
reputation of business risks which may accrue to Eskom
in the event of the matter continuing unresolved.”
ADV HOFMEYR: Okay let us stop there. What did you understand that
to be saying?
M R PA M E N S K Y : T h e c o s t i n t i m e t o p u r s u e t h i s m a t t e r i n t e r m s o f t h e

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31 OCTOBER 2019 – DAY 186
legal element would not justify the cost in time right now on the
position that Eskom was within that environment at that point in time.
ADV HOFMEYR: So would it be fair to say it is trying to get across that
E s k o m i s i n a d i ff i c u l t f i n a n c i a l p o s i t i o n ?
M R PA M E N S K Y : T h a t i s w h a t i t i s s a y i n g m a ’ a m .
ADV HOFMEYR: And in the context of that position it needs to resolve
t h i s m a t t e r, i s t h a t r i g h t ?
M R PA M E N S K Y : m a ’ a m n o t j u s t i n t h e f i n a n c i a l b u t w i t h i n t h e b u s i n e s s
as a whole. The operations, the maintenance, the load shedding, with
10

all of that in contrast and it was facing the company at that point in
time not just financial.
ADV HOFMEYR:

I would like to pick up on the reference to

reputational risk. Do you see that? It says:
“ T h e c o m p a n y ’s r e s o u r c e s n e e d t o b e d e d i c a t e d t o
issues

which

have

an

immediate

and

fundamental

bearing on the reputational and business risk which may
accrue to Eskom in the event of the matter continuing
unresolved.”
So that reference to reputational risk there did you give any
20

consideration to the reputational risk to Eskom of ratifying this
contract?
M R PA M E N S K Y : Ye s t h a t w a s t h e r e p – n o e x c u s e m e m a ’ a m . I n m y
interpretation here of the reputational risk was that if you did not ratify
this type of contract you can land into a position where you going to
have a fight with the CEO, you going to have a fight with TNA when

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31 OCTOBER 2019 – DAY 186
t h e r e i s a b i n d i n g c o n t r a c t s o p e o p l e w i l l l o o k a t y o u a n d s a y, w e l l h o l d
on you know you guys do not abide by contracts.

There is also the

reputational risk of the audits and if you do not resolve this issue how
y o u g o i n g t o r a i s e m o n e y. S o t h a t i s h o w I i n t e r p r e t e d i t i n m y h e a d .
ADV HOFMEYR: So you were not concerned about further entrenching
the relationship between Eskom and TNA as a consequence of the
Board ratifying this contract?
M R PA M E N S K Y : S o r r y m a ’ a m . C a n y o u j u s t m a y b e r e p h r a s e t h a t ?
ADV HOFMEYR: Sure.
10

M R PA M E N S K Y : S o r r y.
ADV HOFMEYR:

Yo u h a v e i d e n t i f i e d t h e t y p e s o f r e p u t a t i o n a l r i s k s

that you were concerned about. I am just seeking clarity that it was not
a concern of yours that by ratifying this contract Eskom might have
damaged its reputation, because by that stage the engagements
between

State

Owned

Enterprises

and

TNA

for

these

business

breakfasts was being criticised in the public domain. Did that not worry
you?
M R PA M E N S K Y : M a ’ a m I w a s n o t a w a r e t h a t i t w a s b e i n g c r i t i c i s e d i n
the public domain.
20

Therefore it did not apply to my mind and the

q u e s t i o n t h a t y o u a r e a s k i n g m e . S o r r y.
A D V H O F M E Y R : C a n I c l a r i f y ? Yo u w e r e n o t a w a r e t h a t b y t h i s s t a g e
Eskom had been required to respond to a number of Parliamentary
questions over its involvement with TNA and the business breakfasts.
M R PA M E N S K Y : N o . I w a s n o t .
ADV HOFMEYR: Can I take it also that you were not aware that at this

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stage the Public Protector had been investigating the matter and had
raised serious concerns about the relationship between all State-Owned
Enterprises and TNA?
M R PA M E N S K Y : N o . I w a s n o t m a ’ a m .
ADV HOFMEYR: Had you known those would you have given this more
thought?
M R PA M E N S K Y : I – d e f i n i t e l y m a ’ a m i f I h a d k n o w n t h o s e e l e m e n t s .
CHAIRPERSON: Well this was in 2015. Is that right?
M R PA M E N S K Y : S o r r y C h a i r. T h e e n d o f 2 0 – y e s , b e g i n n i n g o f 2 0 1 5 .
10

Correct.
CHAIRPERSON: The beginning of 2015. This was two years or let me
s a y. Yo u k n e w a t t h e t i m e t h a t T N A w a s o w n e d b y t h e G u p t a f a m i l y o r
their companies?
M R PA M E N S K Y : Ye s t h a t i s c o r r e c t .
C H A I R P E R S O N : Yo u d i d k n o w. Yo u a n d t h e B o a r d a t t h e t i m e w o u l d
have been aware – would you not have been – of the Waterkloof
Landing which happened in 2013?
M R PA M E N S K Y : Ye s . I w a s a w a r e a t t h a t t i m e .
CHAIRPERSON:

20

And you and the Board and other Board Members

would have been aware of the big noise that Waterkloof Landing
created in the country and that it was related to the Gupta family?
M R PA M E N S K Y : Ye s . I d i d C h a i r.
CHAIRPERSON: Were you not concerned about entering or ratifying a
contract relating to a Gupta entity in 2015 at a time when all of these
things have happened – had happened and already there was a huge

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31 OCTOBER 2019 – DAY 186
c o n c e r n a b o u t t h e r o l e o f t h e G u p t a f a m i l y i n S O E ’s a n d t h e r u n n i n g o f
the country?
M R PA M E N S K Y : N o C h a i r. I t d i d n o t c r o s s m y m i n d a t t h a t p o i n t .
C H A I R P E R S O N : Ye s .
M R PA M E N S K Y : I t d i d n o t c r o s s m y m i n d a t t h a t p o i n t a n d a l s o a t t h a t
p o i n t i n t i m e t h e G u p t a s w e r e n o t s o t o x i c a s t h e y a r e n o w C h a i r. S o i t
did not cross my mind – that element.
CHAIRPERSON: Well you might wish just to reflect a bit whether you
are correct in your assessment of what the situation with the Guptas
10

was in 2015. Of course it maybe that from a certain time after 2015 the
awareness of people in the country heightened about the Guptas, but
2 0 1 5 y o u m i g h t h a v e a d i ff e r e n t i m p r e s s i o n , b u t I t h i n k t h a t s o m e b o d y
like you would be familiar with that is happening in the country in terms
of the newspapers and the media.
I am under the impression that already at that time there was
quite a serious concern in the whole country about the role of the
Guptas. Particularly after the Waterkloof Landing. Is your recollection
d i ff e r e n t ?
M R PA M E N S K Y :

20

C h a i r m y r e c o l l e c t i o n i s v e r y d i ff e r e n t t o t h a t .

Yo u

now took the Waterkloof for a basis and I did not see it in that sense. I
really do not see it as toxic that they are today what they were that
point in time.
C H A I R P E R S O N : O k a y. T h a n k y o u .
ADV HOFMEYR:

And then if we can look at the paragraph under the

bullet that we have just been dealing with at page 145. It reads:

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31 OCTOBER 2019 – DAY 186
“The Board recognises that there is value in platforms
that

enable

Eskom

to

interact

with

the

public

to

communicate and garner support for the work that it is
d o i n g t o e n s u r e t h a t S o u t h A f r i c a h a s s u ff i c i e n t e n e r g y.
In this regard the contract provides an opportunity for
Eskom to achieve the aforesaid objectives.”
What did you make of that paragraph?
M R PA M E N S K Y :

I made of that paragraph that the author of this

resolution together with management believed that there was value in
10

the platform that Eskom was going to interact on.
ADV HOFMEYR:
paragraph?

Why

did

you

form

that

impression

I will explain why I ask that question.

from

that

It does not say

anything in this paragraph about well we are going to be spending 43
million and there is a commensurate value that we receive for that 43
million. It does no cost benefit analysis. Do you agree?
M R PA M E N S K Y : I a g r e e . M a ’ a m m y t h i n g i s t h e v a l u e o f t h e p l a t f o r m s
I could not say financially but there is value within that environment.
The Board recognises there is value within the TNA breakfast arena.
W h a t t h a t v a l u e i s s o m e t h i n g d i ff e r e n t .
20

ADV HOFMEYR:

Ye s , b e c a u s e i n o r d e r f o r y o u t o s i g n o n t o t h i s

resolution you would have had to have been persuaded by that. Would
you not?
M R PA M E N S K Y : To d o w i t h v a l u e ?
A D V H O F M E Y R : Ye s .
M R PA M E N S K Y :

It would have been an element of my consideration

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31 OCTOBER 2019 – DAY 186
ma’am.
ADV HOFMEYR: But at this point in time you have not seen a business
briefing. Have you?
M R PA M E N S K Y : N o . I h a v e n o t .
ADV HOFMEYR:

So why would you regard this analysis of value as

reflected in these four lines as being adequate?
M R PA M E N S K Y : N o . I n e v e r s a i d i t w a s a d e q u a t e m a ’ a m a t a l l .
ADV HOFMEYR: Oh.
M R PA M E N S K Y : I j u s t s a i d t h a t t h e a u t h o r c a m e a c r o s s h e r e a n d s a i d
10

there are value within these platforms to engage stakeholders.
ADV HOFMEYR: So did you form an independent assessment of value?
M R PA M E N S K Y : Ye s . I d i d m a ’ a m .
A D V H O F M E Y R : R i g h t . I t a k e i t f r o m y o u r a ff i d a v i t t h a t w a s b a s e d o n
what Mr Matjila said?
M R PA M E N S K Y : T h a t w a s o n e e l e m e n t o f M r M a t j i l a s a i d m a ’ a m .
A D V H O F M E Y R : T h e n l e t u s g o t o t h a t s h o r t l y. I j u s t w a n t t o l o o k a t
the resolutions recorded on that page.

The one I am interested in is

the third one, because amongst the things that were decided to be
r e s o l v e d w a s t h a t t h e C o r p o r a t e A ff a i r s D e p a r t m e n t i s h e r e b y i n s t r u c t e d
20

to ensure that maximum value is realised from the contract and must
report to the Board on measures it will implement to achieve this
objective. Do you see that?
M R PA M E N S K Y : I s e e t h a t m a ’ a m .
ADV HOFMEYR: Did you ever receive those reports?
M R PA M E N S K Y : N o , I d i d n o t .

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31 OCTOBER 2019 – DAY 186
ADV HOFMEYR: Did you ask for them?
M R PA M E N S K Y : N o . I d i d n o t .
ADV HOFMEYR: Why not?
M R PA M E N S K Y : I t m u s t h a v e s l i p p e d m y m i n d . I d o n o t t h i n k a t t h a t
point in time my concentration was on this. There was a lot going on
within Eskom, but it did not cross my mind. It would have – no. It did
not cross my mind.
ADV HOFMEYR: Do you think it should have?
M R PA M E N S K Y : C e r t a i n l y.
10

ADV HOFMEYR: Thank you.
CHAIRPERSON: Well let us talk about this value issue. Is the position
that when asked to ratify this contract one of the things you would have
looked at is what are the cost implications for Eskom if we ratify this
contract and are those cost implications justified by what Eskom is
going to get out of this contract. Am I right to say that would – that
should have been and would have been an important factor?
M R PA M E N S K Y :

It

would

have

been

a

very

important

factor

...(intervenes).
C H A I R P E R S O N : Ye s .
20

M R PA M E N S K Y : To s e e w h a t y o u g e t o u t o f t h i s c o n t r a c t .
C H A I R P E R S O N : Ye s .
M R PA M E N S K Y : M o s t d e f i n i t e l y C h a i r.
CHAIRPERSON:

Ye s .

Now the point that Ms Hofmeyr raised about

there being no reference I think to the 14 – 43 million in that
paragraph. Is something that also I was concerned about because just

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31 OCTOBER 2019 – DAY 186
t o t a l k a b o u t v a l u e i n g e n e r a l d o e s n o t s e e m t o m e t o b e h e l p f u l . Yo u
have got to say in the context of what you were asked to here you have
got to say value in relation to what and for me a value in relation to
R43 million.
M R PA M E N S K Y : S i r . . . ( i n t e r v e n e s ) .
CHAIRPERSON: And I have got to arrive at a conclusion that the value
that Eskom is going to get out of this contract justifies is Eskom
spending R43 million. That is what my thinking would be. Do you want
to say something about it?
10

M R PA M E N S K Y :

Ye s C h a i r a n d I m a y b e t r a n s g r e s s i n g o n a l i t t l e b i t

f u r t h e r, b u t . . . ( i n t e r v e n e s ) .
C H A I R P E R S O N : Ye s .
M R PA M E N S K Y :

My interpretation of the ratification was that if we –

and we will go into more detail, but ...(intervenes).
C H A I R P E R S O N : Ye s .
M R PA M E N S K Y : I f w e d i d n o t r a t i f y a n d w e c a n c e l l e d . . . ( i n t e r v e n e s ) .
CHAIRPERSON: H’mm.
M R PA M E N S K Y :

S o w e d i d n o t r a t i f y.

It will be a repudiation

...(intervenes).
20

CHAIRPERSON: H’mm.
M R PA M E N S K Y :

And TNA would cancel the agreement based on the

repudiation ...(intervenes).
CHAIRPERSON: Huh-uh.
M R PA M E N S K Y : A n d c l a i m d a m a g e s . . . ( i n t e r v e n e s ) .
CHAIRPERSON: H’mm.

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31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y : F o r 4 3 m i l l i o n .
CHAIRPERSON: Huh-uh.
M R PA M E N S K Y : I n s t e a d o f u s g e t t i n g o n e c e n t o f v a l u e .
CHAIRPERSON: H’mm.
M R PA M E N S K Y : T h e a t t o r n e y s w e n t e v e n f u r t h e r . . . ( i n t e r v e n e s ) .
CHAIRPERSON: H’mm.
M R PA M E N S K Y : A n d l e t m e j u s t q u i c k l y r e a d i t t o y o u s i r.
C H A I R P E R S O N : Ye s . T h a t i s f i n e .
M R PA M E N S K Y : S o t o e x p l a i n t o y o u m y m i n d s e t . . . ( i n t e r v e n e s ) .
10

C H A I R P E R S O N : Ye s .
M R PA M E N S K Y : B e c a u s e m y m i n d s e t w a s t o c l a w b a c k . . . ( i n t e r v e n e s ) .
CHAIRPERSON: Ja.
M R PA M E N S K Y : A s m u c h a s p o s s i b l e .
CHAIRPERSON: Ja. That is fine.
M R PA M E N S K Y : S o r r y. S o r r y m a ’ a m . M a y I g o t h e r e ?
C H A I R P E R S O N : Ye s . Yo u m a y g o t h e r e .
ADV HOFMEYR: Indeed.
C H A I R P E R S O N : Yo u m a y g o t h e r e .
M R PA M E N S K Y :

20

So sir in the legal opinion on the two choices that

Ledwaba Mazwai said you are faced with two choices. Either ratify or
n o t r a t i f y. I n t h e t e r m s o f n o t r a t i f y i n g i t s a i d t w o d i ff e r e n t c l a u s e s :
“The Board determines a decision not to ratify will
tantamount to cancellation.”
And

there

was

no

lawful

basis

to

cancel

because

that

termination clause had been out and TNA could cancel on that contract

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31 OCTOBER 2019 – DAY 186
and it went onto another clause. Clause 4.2.1 and it was quite clear in
my head.
“Except for repudiation leading to termination of the TNA
Contract which would entitle TNA to recover damages it
would lose as a result of the repudiation which is likely
to equal (or close to equalling) the unpaid balance of the
43 million contract value. Thereby placing Eskom in the
same financial position as if it had ratified the TNA
Contract but without any sponsorship associated benefits
10

it would have received from that contract had it not been
interpreted – had it not been terminated.”
So in other words we were faced as a Board with the decision
that was taken by a prior Board.

It came to us and my mind set was

you needed to ratify this to get the most value out of that contract.
What was that value Chair I am not a – I am an accountant. I do not
know those things, but I knew that I would rather get 20, 30, 40 million
value as opposed to losing 43 million and not getting anything.
So my mind set was to clawback as much value as you can
p o s s i b l y g e t . S o t h a t w a s m y i n t e r p r e t a t i o n . S o r r y.
20

C H A I R P E R S O N : O k a y.
A D V H O F M E Y R : T h a n k y o u M r P a m e n s k y. W e w i l l g o i n t o t h a t i n s o m e
greater detail in due course. Just to complete on – we have completed
t h e r e s o l u t i o n o n i t s f a c e . S o l e t u s g o b a c k t o y o u r a ff i d a v i t i f w e m a y
a n d p i c k i t u p a t p a g e – b o t t o m o f p a g e 11 . W e a r e i n E x h i b i t M M 3 .
M R PA M E N S K Y : Ye s m a ’ a m . S o r r y. Ye s m a ’ a m .

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31 OCTOBER 2019 – DAY 186
ADV HOFMEYR:

S o a t t h e b o t t o m o f p a g e 11 y o u s a y t h e r e a t

paragraph 29 that you got a series of documents.

Those are listed

above in paragraph 28 and they are documents that I will take you to
n o w, b u t j u s t f o r t h e r e c o r d t o b e c l e a r.
robin resolution.

There was the draft round

That is the document we have just been looking at.

Correct?
M R PA M E N S K Y : C o r r e c t m a ’ a m .
ADV HOFMEYR:

And then you also got the report prepared by SNG

d a t e d 6 N o v e m b e r. T h a t w a s t h e r e v i e w o f t h e p r o c e s s u n d e r t a k e n a n d
10

awarding the sponsorship contract to TNA Media.
M R PA M E N S K Y : T h a t i s c o r r e c t .
A D V H O F M E Y R : Yo u g o t a l e g a l o p i n i o n p r e p a r e d b y L e d w a b a M a z w a i
setting out their recommendations on the TNA Review Report dated
4 December and you received representations prepared by the then
A c t i n g C E O M r M a t j i l a i n r e s p o n s e t o S N G ’s d r a f t r e p o r t d a t e d
5 November 2014.
M R PA M E N S K Y : C o r r e c t .
ADV HOFMEYR: And then you go on at 29 and you say:
“The documents speak for themselves. I do not set out

20

their content fully here.

I carefully considered the

contents of each of them at the time.”
Is that so?
M R PA M E N S K Y : T h a t i s c o r r e c t m a ’ a m .
ADV HOFMEYR: And then we go over the page to 12. I would like to
jump to paragraph 30.3, because in this paragraph you describing what

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31 OCTOBER 2019 – DAY 186
you understood from the documents. 30.3 reads:
“Pursuant to the recommendations in the SNG Report
Eskom had procured urgent legal advice from Ledwaba
Mazwai.”
I w a n t t o t a k e t h e n e x t s e n t e n c e a n d b r e a k i t u p i f w e m a y. T h e
first thing that you record that they had found is that there was no
impropriety in the conclusion of the TNA Agreement. Do you see that?
M R PA M E N S K Y : I s e e t h a t .
ADV HOFMEYR: What did you mean when you said no impropriety?
10

M R PA M E N S K Y :

There was no criminal intent.

There was no fraud.

T h e r e w a s n o b r i b e r y. T h a t i s h o w I i n t e r p r e t e d i t i n t h a t s e n s e .
ADV HOFMEYR: Do you accept that they had found that he had acted
unlawfully?
M R PA M E N S K Y : Ye s . H e h a d .
ADV HOFMEYR:

Do you accept that they had found that he had

engaged in financial misconduct?
M R PA M E N S K Y : T h e r e p o r t s a i d s o . Ye s .
ADV HOFMEYR: But that was not relevant or was it?
M R PA M E N S K Y : N o m a ’ a m . I n m y m i n d n o i m p r o p r i e t y w a s t h e f r a u d ,
20

corruption or anything to that element.
ADV HOFMEYR:

So was it relevant to you that the lawyers had

concluded he had engaged in financial misconduct?
M R PA M E N S K Y : Ye s . I t w a s o f c o n c e r n t o m e .
ADV HOFMEYR: Did – was that another reason to be sceptical about
M r M a t j i l a ’s r e p r e s e n t a t i o n s ?

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31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y : C e r t a i n l y.
ADV HOFMEYR:

Let us then go to the second part of that sentence.

Yo u s a y t h e s e c o n d t h i n g t h a t t h e y d i d i s a d v i s e d t h a t t h e B o a r d h a d
two alternatives available to it.

Either to ratify the agreement and

procure commercial value from it or not to ratify it. Do you see that?
M R PA M E N S K Y : Ye s . I d o .
ADV HOFMEYR:

Can I say Mr Pamensky in fairness to you?

That is

very consistent with the testimony you have just given and I want to say
that in the following respect.
10

The Chairperson asked you questions

about value. Right. How did you determine whether there was value in
the spend of those R43 million by Eskom?
As I understood your answer you did not actually answer how
Eskom would get value out of its 43 million spent with TNA as opposed
to elsewhere.

I understood your answer to be not the value equation

was get something out of this agreement at all or get nothing because
if we cancel it, it will be regarded as a repudiation and we will be on
the line for the full total plus probably legal costs.

Is that a fair

summary of your mind set?
M R PA M E N S K Y : N o . M y – w i t h a n a d d i t i o n m a ’ a m . W i t h a n a d d i t i o n
20

that on the resolution they made it clear that you would try and
maximise and get the maximum value.
ADV HOFMEYR: H’mm.
M R PA M E N S K Y :

So that corporate department was there to get the

maximum value out of that 43.
ADV HOFMEYR:

Despite the fact that there was never any follow up

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31 OCTOBER 2019 – DAY 186
with them as to whether they had done that?
M R PA M E N S K Y : T h a t i s c o r r e c t .
CHAIRPERSON: Of course I take it that you did not know what value
may have been there to be maximised?
M R PA M E N S K Y : Ye s . I w a s n o t t h e r e t o b e l i e v e . . . ( i n t e r v e n e s ) .
C H A I R P E R S O N : Ye s .
M R PA M E N S K Y : B u t a s I s a i d t o y o u C h a i r I r e a l l y t h i n k w e w e r e i n a
h a r d p l a c e . Yo u k n o w.
C H A I R P E R S O N : Ye s .
10

M R PA M E N S K Y : Tr y t o g e t s o m e t h i n g o u t t h a n l o s i n g 4 3 m i l l i o n .
C H A I R P E R S O N : Ye s .
M R PA M E N S K Y : W a s m y w h o l e c o n c e r n i n t h a t e l e m e n t .
C H A I R P E R S O N : Ye s .
ADV HOFMEYR:
Ledwaba

I want to probe a bit further your understanding of

M a z w a i ’s

advice,

because

in

this

describing as I understand it what they advised.

paragraph

you

are

They advised that

there were these two alternatives. Right?
M R PA M E N S K Y : C o r r e c t .
ADV HOFMEYR: And you actually at the bottom of that paragraph give
20

us a reference to the particular paragraph where you say they gave this
option in a sense to the Board. Is that right?
M R PA M E N S K Y : Ye s m a ’ a m .
ADV HOFMEYR:

O k a y.

L e t u s g o t o t h a t p a r a g r a p h i f w e m a y.

will find it at page 190 of the same bundle, MM3.
M R PA M E N S K Y : Ye s . Ye s m a ’ a m .

Page 83 of 156

Yo u

31 OCTOBER 2019 – DAY 186
ADV HOFMEYR:

So let us pick it up at clause - paragraph 4.1.3.2,

because that is the lead into the paragraph that you referred us to a
moment ago. Right. It says there:
“Any ratification of the TNA Contract by the Eskom Board
of Directors would in our view be predicated on one or
both of the following primary considerations. Namely …”
I j u s t w a n t t o p a u s e t h e r e . Yo u i n y o u r t e s t i m o n y a m o m e n t a g o
jumped to the second one.

I would like us to pause on the first one.

The first one says:
10

“…

if

the

Board

determines

or

considers

from

a

commercial perspective that the TNA Contract represents
good value for money proposition to Eskom as measured
against the costs of the sponsorship on the one hand
and the benefits to be derived therefrom by Eskom on
the other and/or …”
And then it goes into the second subparagraph that you were
drawing our attention to a moment ago.
one. As I read that first paragraph.

I want to focus on that first

It is saying to the Eskom Board

when you make this decision whether to ratify this contract or not you
20

need to determine whether there is commercial value in this contract.
Do you have the same understanding of that paragraph?
M R PA M E N S K Y : Ye s . T h e r e h a s t o b e v a l u e i n t h e T N A s p o n s o r s h i p
elements.
ADV HOFMEYR: Indeed and it is not just some value. They are quite
specific. It is the cost benefit analysis that any prudent spender of R43

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31 OCTOBER 2019 – DAY 186
million of public funds would engage in. It is how much you are going
to pay for what you are going to get. It is not done in a vacuum. Is it?
M R PA M E N S K Y : N o . I t i s n o t . T h e y a r e s a y i n g w h a t y o u a r e s a y i n g .
ADV HOFMEYR: Indeed. They go on at 4.1.4 on that page to say:
“ W e a r e n o t a b l e t o o ff e r a n y a d v i c e r e g a r d i n g t h e
commercial value to Eskom of the TNA Contract.”
I read that to say you have to look elsewhere Board of Eskom to
determine this commercial value which they regard as a prerequisite to
any ratification decision by the Board.
10

Do you have the same

understanding?
M R PA M E N S K Y : S o r r y. C a n y o u j u s t r e p e a t t h a t q u e s t i o n a g a i n ?
ADV HOFMEYR: What 4.1.4 conveys to me if I was the reader of this
being asked to sign onto the round robin resolution is that Ledwaba
M a z w a i t h e a u t h o r s o f t h i s r e p o r t c a n n o t o ff e r a d v i c e a s t o t h e
commercial value to Eskom of the TNA Contract.

Do you understand

…(intervenes)?
M R PA M E N S K Y : I a g r e e w i t h t h a t .
ADV HOFMEYR:

But earlier we have established that those same

lawyers said it is relevant to your ratification decision Board of Eskom
20

that you determine whether there is commercial in the TNA Contract.
Correct?
M R PA M E N S K Y : M a ’ a m t h a t i s w h a t t h e y s a i d a n d m y i n t e r p r e t a t i o n i s
going back again.

As I said we are in that position where we found

ourselves with a contract that signed.

My fear was in was to lose 43

million and not obtain one sponsor or corporate value as they explained

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31 OCTOBER 2019 – DAY 186
to us over here.

So I felt it was in the best interests of Eskom to

procure value.
There had to be some value because Colin Matjila explained
his value and made sure your claw as much value possible as opposed
to losing it.

So you know it was a hard question at my point in that

time to determine you know do we lose 43 or do we try and clawback as
much as possible.
ADV HOFMEYR:

Mr Pamensky

I

understand

that

was

your

interpretation.
10

M R PA M E N S K Y : H ’ m m .
ADV HOFMEYR:

What I am seeking to do now is explore the

reasonableness of that interpretation.
M R PA M E N S K Y : I g o t y o u m a ’ a m .
ADV HOFMEYR: Do you agree that the lawyers were saying the Board
of Eskom has to determine whether there is commercial value in this
contract?
A D V B L O U : S o r r y C h a i r. I f I m a y i n t e r j e c t f o r a m o m e n t ?
CHAIRPERSON: Ja.
ADV BLOU: And maybe ...(intervenes).
20

CHAIRPERSON: Please come forward.
A D V B L O U : S o r r y C h a i r.
CHAIRPERSON: Ja.
ADV BLOU: And perhaps it is better for the witness to just leave the
room because I do not want to be ...(intervenes).
C H A I R P E R S O N : O h . Yo u . . . ( i n t e r v e n e s ) .

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31 OCTOBER 2019 – DAY 186
ADV BLOU: Accused later of my answer putting ...(intervenes).
C H A I R P E R S O N : O h , o k a y.
ADV BLOU: Of my objection putting questions into ...(intervenes).
C H A I R P E R S O N : Ye s .
ADV BLOU: His mind.
CHAIRPERSON:

Ye s .

O k a y.

Mr Pamensky can we excuse you for a

minute. Somebody will call you from outside.
ADV BLOU: We are dealing with on any version a lay person here who
is not the author of the document.
10

It is established law that the

documents be an ordinary meaning in an objective sense. Their proper
meaning is not what he thinks. It is not what Ms Hofmeyr thinks. It is
not even with respect what you think.
Documents are to be construed purposively in context to have
regard to their words. So although it is quite permissible of course for
t h i s C o m m i s s i o n t o i n t e r r o g a t e M r P a m e n s k y ’s s t a t e o f m i n d i n r a t i f y i n g
the contract and what he understood something to be and also to the
reasonableness of such a belief in the light of the words.
It is important I am afraid to have to point out that in this
document at 4.1.3.2 the authors – the lawyers were saying it can be

20

p r e d i c a t e d o n o n e o r b o t h a n d i t s a y s a n d / o r. S o e i t h e r y o u c a n d e c i d e
as I understand this that this represents good value just without any –
any fear of the consequences of cancellation.
Yo u m a y j u s t d e f i n e t h a t d e s p i t e t h e f a c t t h a t i t i s i r r e g u l a r
expenditure and financial misconduct that it is a contract that is
worthwhile having independently of any consequences relating to

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31 OCTOBER 2019 – DAY 186
cancellation. It says and/or if the Board determines that a decision to
ratify is tantamount to cancellation where there are no grounds.
Then it will result in a claim for damages.

The only point I

am trying to make is it was not meant to be necessarily a combined
understanding. The witness’ evidence was that he placed more weight
rightly or wrongly on 4.1.3.2.2 because some value is better than none,
but I do not think it is fair to put to him that the authors of this
document meant there had to always be a positive answer to one before
you could go into two and ratify the contract. I am just putting that on
10

the record.
C H A I R P E R S O N : Ye s .
ADV BLOU:

That is my reading of the document and I think it is

ultimately one ...(intervenes).
C H A I R P E R S O N : Ye s .
ADV BLOU: Can argue and deal with it at the end ...(intervenes).
C H A I R P E R S O N : Ye s , y e s .
ADV BLOU: But I do not think it would be put categorially that it was a
… ( i n d i s t i n c t ) t o t h e B o a r d ’s d e c i s i o n . . . ( i n t e r v e n e s ) .
C H A I R P E R S O N : Ye s .
20

ADV BLOU: Because it is not the way I read it.
CHAIRPERSON:

Ye s .

O k a y.

No.

I understand

your point.

M s H o f m e y r.
A D V H O F M E Y R : T h a n k y o u C h a i r.
CHAIRPERSON: H’mm.
ADV HOFMEYR:

M r P a m e n s k y ’s a ff i d a v i t b e f o r e t h i s C o m m i s s i o n a n d

Page 88 of 156

31 OCTOBER 2019 – DAY 186
his evidence today says that he came to the decision to ratify the
contract based on what was in these documents.

It is my submission

that it is therefore fair to probe with him what his understanding of the
d o c u m e n t s w a s . M r P a m e n s k y ’s a n s w e r i n f a i r n e s s t o h i m a b o u t c l a u s e
4.1.3.2.1 was that it was necessary to establish whether there was
commercial value.
Mr Blou acting for Mr Pamensky places greater emphasis on
the second clause.

Mr Pamensky is fully entitled to give that answer

when I seek to probe with him whether it was his understanding that
10

commercial value was an aspect that the Board itself had to determine.
So it is my submission that we leave it to Mr Pamensky to answer that.
I am suggesting that his understanding of this document is
absolutely key to the decision that he took and the question whether
that decision was lawfully taken given the requirements of the PFMA
t h a t w e h a v e b e e n t h r o u g h p r e v i o u s l y.

It is in that context that I ask

the questions.
C H A I R P E R S O N : O k a y. I t h i n k . . . ( i n t e r v e n e s ) .
ADV BLOU: (Indistinct).
CHAIRPERSON: Ja, ja.
20

ADV BLOU: Thank you.
C H A I R P E R S O N : O k a y. M a y b e l e t m e t e l l . . . ( i n t e r v e n e s ) .
A D V B L O U : C h a i r, I r e a l l y … ( i n t e r v e n e s ) .
CHAIRPERSON: Let me tell you what I was ...(intervenes).
ADV BLOU: Ja.
CHAIRPERSON: Thinking of saying before you ...(intervenes).

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31 OCTOBER 2019 – DAY 186
A D V B L O U : Ye s , y e s . T h a n k y o u .
CHAIRPERSON:

It seems to me that it is how the question is put to

him that that is important ...(intervenes).
A D V B L O U : Ye s .
CHAIRPERSON:

And now that you have raised your concern I think

Ms Hofmeyr is alive to it ...(intervenes).
A D V B L O U : Ye s .
CHAIRPERSON:

And there is good chance that going forward

...(intervenes).
10

A D V B L O U : Ye s . L o o k . . . ( i n t e r v e n e s ) .
CHAIRPERSON: She will put it in such a way that ...(intervenes).
ADV BLOU: That it is more neutral.
C H A I R P E R S O N : J a . Ye s .
ADV BLOU: Can I just say that is the only thing I wanted to place on
record. It is one thing to say to a witness read the clause and give me
what your understanding was at the time.
CHAIRPERSON: Ja.
ADV BLOU: It is quite something else to say to the witness I read the
clause as a senior lawyer in the following way would you agree. It is a

20

b i t d i ff i c u l t f o r h i m t o s a y t h a t h e t h i n k s i t h a s a d i ff e r e n t m e a n i n g . I f
you want to know what his understanding was ask his understanding.
CHAIRPERSON:

Well

I

am

not

sure

about

the

latter

part

...(intervenes).
ADV BLOU:

But...(intervenes).

CHAIRPERSON: Particularly where we are dealing with somebody who

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31 OCTOBER 2019 – DAY 186
is a chartered accountant.
ADV BLOU: Ja. No. (Indistinct).
CHAIRPERSON: I think they would – they should be able to say no, no
I – that is not how I read it.
A D V B L O U : I h a v e n o d i ff i c u l t y.
C H A I R P E R S O N : Ye s .
ADV BLOU: But the point is I do not think the examiner can likely say
i t m u s t b e r e a d i n t h i s w a y o r a s I r e a d i t i n t h i s w a y. T h a t i s a l l I a m
saying.
10

CHAIRPERSON: Ja. No, no, no. I think ...(intervenes).
ADV BLOU:

I think the point has been made and I think it is just

...(intervenes).
CHAIRPERSON: Ja. No. I think Ms Hofmeyr ...(intervenes).
ADV BLOU:

If the question is asked in a bit of a more neutral way

...(intervenes).
C H A I R P E R S O N : Ye s .
A D V B L O U : I t d o e s – w e w i l l n o t h a v e a n y f u r t h e r d i ff i c u l t y.
CHAIRPERSON: No, no. That is fine. I am sure ...(intervenes).
A D V B L O U : T h a n k y o u C h a i r.
20

CHAIRPERSON: It will be sorted out, ja.
ADV BLOU: Thank you.
C H A I R P E R S O N : T h a n k y o u . M r P a m e n s k y m u s t b e c a l l e d b a c k n o w. I
t h i n k i t i s - j a . T h a n k y o u M r P a m e n s k y.
M R PA M E N S K Y : M a y . . . ( i n t e r v e n e s ) .
C H A I R P E R S O N : Ye s .

Page 91 of 156

31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y :

May I also say also something here please.

resolution was – had the CEO and CFO on there.

Yo u k n o w.

This
They

would have voiced and they are duty bound to voice their opinions if
they also did not feel there was value in the specific contract.
ADV HOFMEYR: How were they going to do that?
M R PA M E N S K Y : T h e y c o u l d h a v e c a l l e d u s . T h e y c o u l d h a v e w r i t t e n
on the e-mail. They have a variety of ways to communicate with us.
ADV HOFMEYR:

Thank you.

We will return to the question of this –

this decision – oh goodness.
10

M R PA M E N S K Y : S o r r y C h a i r. S o r r y C h a i r.
C H A I R P E R S O N : O k a y.
ADV HOFMEYR: Had an accident.
CHAIRPERSON:

Somebody will assist you and they give you another

glass.
M R PA M E N S K Y : S o r r y C h a i r. S o r r y.
A D V H O F M E Y R : T h a n k f u l l y i t w a s n o t a m i r r o r.
M R PA M E N S K Y : S o r r y.
C H A I R P E R S O N : Ye s . T h a n k y o u .
A D V H O F M E Y R : T h a n k y o u C h a i r. M r P a m e n s k y i f w e c a n t h e n g o t o
20

p a r a g r a p h – p a g e 1 3 o f t h e a ff i d a v i t , b e c a u s e I t h i n k i t i s u s e f u l t o u s e
y o u r o w n w o r d s f r o m y o u r a ff i d a v i t i n o r d e r t o t a k e f u r t h e r t h i s d e b a t e
we are having about the commercial value in the contract with TNA.
M R PA M E N S K Y : Ye s m a ’ a m .
ADV HOFMEYR:

At paragraph 32 you say:

“My view that ratifying the contract as opposed to

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31 OCTOBER 2019 – DAY 186
repudiating it made good commercial sense was based
inter alia on the following information set forth in Mr
M a t j i l a ’s r e p r e s e n t a t i o n s , i n r e s p o n s e t o t h e S N G r e p o r t ,
which accompanied the draft round robin resolution.”
L e t ’s j u s t p a u s e t h e r e .

Is it a fair reading of that paragraph to

say you did understand that you needed to make an inquiry into the
commercial sense of the contract?

10

M R PA M E N S K Y :

(Indistinct).

ADV HOFMEYR:

The commercial value.

M R PA M E N S K Y :

S o r r y, c a n y o u j u s t r e p e a t y o u r q u e s t i o n ?

ADV HOFMEYR:

I want to just establish whether you and I understand

t h i s p a r a g r a p h o f y o u r a ff i d a v i t i n t h e s a m e w a y. I u n d e r s t a n d i t t o b e
saying you understood that you needed to determine as a member of
this Board ...(intervenes).
M R PA M E N S K Y :
ADV HOFMEYR:

No, no, no.
Can I finish my question because you may be

a n t i c i p a t i n g a d i ff e r e n t o n e .

20

M R PA M E N S K Y :

S o r r y.

ADV HOFMEYR:

Yo u u n d e r s t o o d a s a m e m b e r o f t h i s B o a r d t h a t y o u

needed to establish whether there was commercial value in the
contract, is that what you’re saying here?
M R PA M E N S K Y :

No I am saying here that I believe based on his

representations there would be value in this contract.
ADV HOFMEYR:

I t ’s n o t c l e a r t o m e t h a t t h a t ’s d i ff e r e n t .

Yo u

describing to me the source you went to, I am asking an earlier

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31 OCTOBER 2019 – DAY 186
question, do you agree that you needed to go to determine whether
there was commercial value in the contract?
M R PA M E N S K Y :

Yo u h a d t o a p p l y y o u r m i n d t h a t t h e r e w a s s o m e f o r m

of value in this contract.
ADV HOFMEYR:
CHAIRPERSON:

Indeed.

S o l e t ’s l o o k a t w h a t y o u r e l i e d o n .

W e l l , I a m s o r r y, I j u s t w a n t t o m a k e s u r e I

understand your evidence.

Ms Hofmeyr asked you the question

w h e t h e r y o u w e r e s a y i n g h e r e i n y o u r a ff i d a v i t t h a t i t w o u l d b e
necessary to establish that there was commercial value to the
10

contracts.

Yo u g a v e a r e s p o n s e w h i c h I u n d e r s t o o d t o b e a ff i r m a t i v e .

M R PA M E N S K Y :

Ye s y o u h a d t o a p p l y y o u r m i n d t o s e e t h e r e i s s o m e

v a l u e i n t h i s c o n t r a c t C h a i r.
C H A I R P E R S O N : Ye s , n o w t h a t t o m e s e e m s t o b e d i ff e r e n t f r o m w h a t
you were talking about earlier on when you said I thought we should
ratify this contract because otherwise we may be facing litigation for
damages.

When you talk about commercial value to the contract it

seems to me you are talking about if you look at this contract, you talk
about, saying if you look at this contract is it worth us continuing with it
o n i t s o w n , l e a v e o u t t h e t h r e a t s o f l i t i g a t i o n , t h a t ’s h o w I u n d e r s t o o d
20

what you are saying. Am I correct?
M R PA M E N S K Y :

No sir I’m applying both of them apologies.

I’m

s a y i n g o n e o f m y r e a s o n s w a s t o r a t i f y, b e c a u s e w e d o n ’ t w a n t t h a t
loss, the second element is, what value is there going to be and Mr
Matjila explained some of those values, which in my mind, were
reasonable to get value from this contract.

Page 94 of 156

What the rand amount of

31 OCTOBER 2019 – DAY 186
the value, I did not answer but it did seem there is value in this
c o n t r a c t s i r.
CHAIRPERSON:

O k a y.

M R PA M E N S K Y :

I hope I answered that?

CHAIRPERSON:

I u n d e r s t a n d y o u r a n s w e r.

ADV HOFMEYR:
M a t j i l a ’s

M r P a m e n s k y l e t ’s l o o k a t w h a t y o u d r e w f r o m M r

representations

because

you

set

that

out

in

the

sub

p a r a g r a p h s o f p a r a g r a p h 3 2 a n d j u s t t h e l e a d i n y o u s a y,
“In his representations Mr Matjila explained the value
10

which Eskom had and would continue to derive from the
contract.”
A n d t h e n y o u h i g h l i g h t t h e o n e s b e l o w, a r e t h e s e t h e o n e s y o u
took into account?
M R PA M E N S K Y :

(Indistinct) ma’am, I took into account that they had

got this value which meant that there was existing value that they had
been obtaining so it said they had been.

A s I s a i d i n m y a ff i d a v i t I

found it as a renewal so they were obviously getting value from before
and management and everybody were happy so I saw that as one
element and the second element, yes I understood from his points is
20

the value that you would have paid from the sponsorship.
ADV HOFMEYR:

T h a n k y o u , l e t ’s t a k e e a c h o f t h e m 3 2 . 1 s a i d t h a t , M r

Matjila had recorded that similar contracts had been in place between
Eskom and TNA regarding the same subject matter and that contract
had come to an end. Mr Matjila did not disclose, in his representations
t h a t t h o s e p r e v i o u s , s i m i l a r c o n t r a c t s h a d t h e m s e l v e s b e e n i r r e g u l a r,

Page 95 of 156

31 OCTOBER 2019 – DAY 186
did he?
M R PA M E N S K Y :

No he did not.

ADV HOFMEYR:

I f h e ’s d o n e s o , w o u l d y o u h a v e b e e n a b i t m o r e

sceptical?
M R PA M E N S K Y :

Ve r y m u c h s o m a ’ a m .

ADV HOFMEYR:

At 32.2 you record that according to Mr Matjila the

a g r e e m e n t o ff e r e d a p l a t f o r m t o E s k o m t o p r o p a g a t e i t s v a r i o u s
campaigns including the publicised 49M campaign which reportedly was
a p h e n o m e n a l s u c c e s s , I t h i n k t h a t ’s a d i r e c t q u o t e a c t u a l l y f r o m h i s
10

representations. What did you understand that to convey?
M R PA M E N S K Y :

Convey that this platform has been very successful

to communicate out there with the public on the 49M campaign.

He

also said – I’ll just go to is, he also said, sorry ma’am if I may go – may
refer to it.
ADV HOFMEYR:

Of course.

M R PA M E N S K Y :

I t ’s j u s t c o m e t o m y m i n d .

ADV HOFMEYR:

Yo u ’ l l f i n d h i s r e p r e s e n t a t i o n s t a r t i n g a t p a g e 1 7 4 .

M R PA M E N S K Y :

He said in clause 14 on page 4,

“This …(intervenes).
20

ADV HOFMEYR:

S o r r y j u s t f o r t h e r e c o r d i t ’s p a g i n a t e d p a g e 1 7 6 .

M R PA M E N S K Y :

Oh sorry 176 which goes into 177 and I’ll read the

last paragraph,
“The CE believed this investment making having regard
to the reported success of utilisations of these platforms
in the past”.

Page 96 of 156

31 OCTOBER 2019 – DAY 186
ADV HOFMEYR:
disclose

in

Right, Mr Pamensky again, what Mr Matjila did not

those

representations

was

that

the

Parliament

had

requested Eskom to respond on this very question, what value had you
been able to extract from the business breakfasts and the advice that
came back from the independent agency that Eskom used at the time
was, that there was no way to establish a direct causal link between the
49M on the screen at the business breakfasts and the success of the
49M campaign, he didn’t include that in his representations, did he?

10

M R PA M E N S K Y :

No he did not ma’am.

ADV HOFMEYR:

And if he had would you have been more sceptical?

M R PA M E N S K Y :

Of course ma’am.

ADV HOFMEYR:
granted

by

And then you go on to list the rights that would be

TNA to

Eskom,

that

also

comes

from

Mr

M a t j i l a ’s

representations, is that right?
M R PA M E N S K Y :
ADV HOFMEYR:

Ye s m a ’ a m .
Now Mr Pamensky we’ve already identified that at

the time you make this decision you’re not aware that the previous
Board has actually determined that this contract did not have good
value for Eskom, correct?
20

M R PA M E N S K Y :

That is correct.

ADV HOFMEYR:

And at this point, am I correct in understanding that

the source of your comfort that there was commercial value in this
c o n t r a c t l a y i n M r M a t j i l a ’s r e p r e s e n t a t i o n s ?
M R PA M E N S K Y :

Not solely in his representations.

ADV HOFMEYR:

In what else?

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31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y :

In what else that this came from management –

Board and management that they were happy to continue with this so
they must have believed there was value in the contract otherwise they
wouldn’t have submitted this round robin resolution to us.
ADV HOFMEYR:

Well why would you draw that conclusion, you made

the point earlier that amongst the people who were asked to approve
were the Financial Director and the CEO, correct?
M R PA M E N S K Y :
ADV HOFMEYR:
10

That is correct.
The round robin resolution was circulated by the

Chairman, is that correct?
M R PA M E N S K Y :
ADV HOFMEYR:

That is correct.
So why did you make any assumption as to

management being behind it prior to anyone in that position having
voted on it?
M R PA M E N S K Y :

Because management would submit these type of

r o u n d r o b i n s , i t ’s m a n a g e m e n t ’s j o b , t o g e t h e r t o i n f o r m u s o f t h i s
information.
ADV HOFMEYR:

But it wasn’t circulated by management it was

circulated by the Chairman of the Board.
20

M R PA M E N S K Y :

I believed at that point in time that – we hadn’t had

o n e b e f o r e b u t t h e C h a i r m a n – t h e c o m p a n y ’s s e c r e t a r y s e n d s t h e m o n
behalf of the Chairman and the round robin to do with management at
that point in time.
ADV HOFMEYR:
M R PA M E N S K Y :

On what basis did you hold that belief?
On the belief, when I used to do round robin

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31 OCTOBER 2019 – DAY 186
r e s o l u t i o n s i n o u r e n t i t y, w e a s m a n a g e m e n t w e r e h a p p y t o s u b m i t a
r o u n d r o b i n r e s o l u t i o n p r o v i d e d t h e r e w a s s u ff i c i e n t i n f o r m a t i o n t o
make an informed decision.
ADV HOFMEYR:

I t ’s n o w t h e 3 r d o f F e b r u a r y 2 0 1 5 , w h y d i d y o u t h i n k

that, that would apply in Eskom?
M R PA M E N S K Y :

B e c a u s e i t ’s j u s t r e a s o n a b l e t h a t t h e y c a m e a c r o s s

t h i s e l e m e n t a n d I a s s u m e d t h a t ’s h o w i t w o r k e d . I n o u r o r g a n i s a t i o n i t
would work in that organisation as well.
ADV HOFMEYR:
10

But you do accept that they were asked for their own

approval, it wasn’t as though this came as a resolution as some
resolutions

do

that

s a y,

supported

by

management

or

this

is

m a n a g e m e n t ’s r o u n d r o b i n r e s o l u t i o n t h a t ’s c o m i n g t o t h e N o n - E x e c s
on the Board.
M R PA M E N S K Y :
ADV HOFMEYR:

I accept that ma’am.
L e t ’s g o b a c k t o t h e p a r t o f t h e r e l i a n c e t h a t y o u

placed on Mr Matjila and his representations.

I fully understand that

i t ’s n o t t h e s o l e s o u r c e o f y o u r c o m f o r t , t h a t t h e r e w a s c o m m e r c i a l
v a l u e b u t I ’ d l i k e t o f o c u s o n t h e r e l i a n c e p l a c e d o n M r M a t j i l a ’s
representations.
20

M R PA M E N S K Y :
ADV HOFMEYR:

Ye s m a ’ a m .
Yo u ’ v e a l r e a d y t e s t i f i e d t h a t y o u d i d n ’ t b u y M r

M a t j i l a ’s i n t e r p r e t a t i o n o f t h e c o n t r a c t , c o r r e c t ?
M R PA M E N S K Y :

That is correct.

ADV HOFMEYR:

Yo u ’ v e a l s o t e s t i f i e d … ( i n t e r v e n e s ) .

M R PA M E N S K Y :

Sorry ma’am I didn’t find it impropriety I said myself,

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31 OCTOBER 2019 – DAY 186
I didn’t buy into it I didn’t find anything sinister or anything, Rhuan with
his interpretation but I did not buy it in my mind.
ADV HOFMEYR:

Understood, you also clarified for us that you were

aware that the lawyers had advised that he had been involved in
financial misconduct, correct?
M R PA M E N S K Y :

That is correct.

ADV HOFMEYR:

Yo u a l s o h a v e t e s t i f i e d t h a t y o u w e r e a w a r e t h a t b o t h

the SNG report and the legal review indicated that Mr Matjila and
Choeu played a part in removing the termination clause from the
10

contract, is that correct?
M R PA M E N S K Y :

I found that Mr Choeu had removed the clause I

didn’t find the element that the acting CEO removed the clause.
ADV HOFMEYR:

Well he signed the contract with the clause removed

at least that is clearly established, do you accept that?
M R PA M E N S K Y :

No I definitely accept that ma’am I’m just saying

what the opinion said was Mr Choeu removed that clause.
ADV HOFMEYR:

L e t ’s b e c l e a r a b o u t t h a t s i g n i f i c a n c e o f t h a t r e m o v a l

o f t h e c l a u s e . W o u l d y o u a g r e e w i t h m e t h a t i t ’s p r e c i s e l y b e c a u s e t h a t
c l a u s e w a s r e m o v e d t h a t t h i s i s s u e w a s a r i s i n g a t a l l , f o r t h e B o a r d ’s
20

consideration.
M R PA M E N S K Y :
ADV HOFMEYR:

100% correct.
B e c a u s e i f t h a t c l a u s e h a d r e m a i n e d o n 3 0 d a y ’s

written notice, Eskom could have got out of the contract.
M R PA M E N S K Y :

Correct.

ADV HOFMEYR:

I want to ask you in the context of those features of

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31 OCTOBER 2019 – DAY 186
M r M a t j i l a ’s r o l e i n t h i s c o n t r a c t a n d i t s c o n c l u s i o n , i t w a s r e a s o n a b l e
for you to rely on his estimation of its commercial value.
M R PA M E N S K Y :

Ye s I w a s c o m f o r t a b l e o n t h a t b a s i s , f i r s t o f a l l t h e r e

w a s n o i m p r o p r i e t y s e c o n d o f a l l h e h a d a d i ff e r e n t i n t e r p r e t a t i o n t h a t I
didn’t buy into but it wasn’t sinister or anything to that extent and I
didn’t see anything sinister into that extent. So I took it on face value
what was there.
ADV HOFMEYR:

Did you make any enquiries about other contracts of

E s k o m ’s i n w h i c h s u c h t e r m i n a t i o n c l a u s e s e i t h e r a p p e a r e d o r d i d n ’ t
10

appear?
M R PA M E N S K Y :
ADV HOFMEYR:

No I did not.
Did you not – do you not, now think it might have

been relevant to ask that?
M R PA M E N S K Y :
relevant

to

ask

I do think now it would have been potentially
that

but

it

depends

on

the

situation

or

the

circumstances we find ourselves in when that comes. Remember we’re
an independent Non-Exec day-to-day with an oversight so we would
have to oversight to see that one coming.
ADV HOFMEYR:
20

If you had asked you would likely have been given

the answer that Mr Pretorius gave this Commission which is that there
– these were always standard clauses in sponsorship agreements and I
suspect his answer might have resonated with you because he
explained why that was so, he said,
“ A t t h i s t i m e i n E s k o m ’s e x i s t e n c e i t ’s i n a f i n a n c i a l l y
precarious position.

Media spend is a nice to have in

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31 OCTOBER 2019 – DAY 186
such an organisation.

So you don’t commit to R43

m i l l i o n w o r t h o f m e d i a s p e n d u n l e s s t h e r e ’s s o m e w a y
f o r E s k o m t o g e t o u t o f i t i f i t ’s n o t a p r i o r i t y a t a p o i n t i n
time”.
Would you have found that compelling?
M R PA M E N S K Y :
ADV HOFMEYR:

Ye s I w o u l d h a v e f o u n d t h a t c o m p e l l i n g .
Mr Pamensky if we can then go to page 15 of your

a ff i d a v i t a n d – s o I c a n b e c l e a r o n y o u r e v i d e n c e n o t w i t h s t a n d i n g M r
M a t j i l a ’s r o l e i n r e m o v i n g t h a t – w e l l i n b e i n g p a r t y t o a c o n t r a c t i n
10

which that termination clause was removed as well as the findings that
he had engaged in irregular expenditure and financial misconduct, you
found it reasonable to rely on him as the source for commercial value in
the contract?
M R PA M E N S K Y :

M a ’ a m a s I s a i d b e f o r e I d i d n ’ t f i n d a n y t h i n g s i n i s t e r,

these misconducts and these elements you talk are in relation to PFMA
and that he breached his – he contravened his delegation of authority
by entering into this contract which he interpreted as an investment.
So I didn’t find anything sinister in relying on his representations here.
ADV HOFMEYR:
20

Mr Pamensky I put it to you that that is an

unreasonable position to have adopted and I say that so that you can
give any response you wish.
M R PA M E N S K Y :

I don’t agree with it but we’ll leave it there.

ADV HOFMEYR:

Thank you, at 34 on page –sorry 33 on page 15 you

say there,
“ I t h e r e f o r e c o n c l u d e d t h a t t h e c o n t r a c t w a s e ff e c t i v e l y a

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31 OCTOBER 2019 – DAY 186
renewal except on more favourable terms.”
How did you come to that conclusion?
M R PA M E N S K Y :

There were two elements, first of all in the SNG

report it explained that they were saving 17% and I just want to stand
to correction it could have been in mister – sorry I call him the acting
C E O ’s r e p r e s e n t a t i o n , I j u s t w a n t t o c h e c k i t … ( i n t e r v e n e s ) .
ADV HOFMEYR:
M R PA M E N S K Y :

Ye s h e d i d m a k e t h a t p o i n t .
O h h e d i d , s o t h a t ’s w h e r e I c a m e a n d i t w a s q u i t e

specific they were saving 17% or roughly about 6 or 7 million Rand.
10

ADV HOFMEYR:

Thank you for that, what I was actually interested in

but I should have been specific is why you regarded it as a renewal?
M R PA M E N S K Y :

Because if you go to his element and how they

explain it, that they had a media agency it was from the past and
therefore it was a renewal in that sense.

So it was from past and he

indicated it was a renewal by saving that money and obviously from a
sense they had prior contracts with the media company the Mediashop
sorry if the Mediashop was no longer doing it, TNA approached, as I
understand him here, probably directly I don’t recall that, but you were
s a v i n g t h a t m o n e y. S o I c o n c l u d e d i t w a s a r e n e w a l b u t I a l s o r e a d i t
20

a n d t h a t ’s h o w I i n t e r p r e t e d t h e r e p r e s e n t a t i o n f r o m t h e a c t i n g C E .
ADV HOFMEYR:

Mr Pamensky it may well be that I have missed it so

I’m going to ask for your assistance on that, no doubt my learned friend
will assist if neither you or I can find it but where does Mr Matjila talk
about this contract being a renewal?
M R PA M E N S K Y :

H e f i r s t o f a l l s a y s t h a t – I ’ l l t e l l y o u n o w, c l a u s e 9 . 1

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31 OCTOBER 2019 – DAY 186
was the first one,
“Previously there were contracts in place between Eskom
and TNA regarding the same subject matter and that the
contract had come to an end.”
T h a t ’s h o w I i n t e r p r e t e d i t m a ’ a m .
ADV HOFMEYR:

Oh so …(intervenes).

M R PA M E N S K Y :

The second one, sorry:

“The latitude engaged directly at TNA as opposed to
going through the Mediashop who Eskom appointed
agency for the placing of the advertisement related

10

s p e n d , o ff e r e d E s k o m t h e o p p o r t u n i t y t o s a v e 1 7 % i n t h e
agency fee.”
So it was a renewal of the prior contracts that they had run
before.
ADV HOFMEYR:

I understand, you and I are agreed he doesn’t use

the word, renewal?
M R PA M E N S K Y :

No he doesn’t use the word renewal.

ADV HOFMEYR:

And the reason why I probe it further Mr Pamensky is

that the last contract, in fact, came to an end back in 2012, you didn’t
20

h a v e t h a t i n f o r m a t i o n , I a c c e p t t h a t b u t i t ’s i n t e r e s t i n g t o m e t h a t y o u
read 9.1 nonetheless to suggest that this is just more of what happened
p r e v i o u s l y.
M R PA M E N S K Y :

Ye s , t h e y ’ r e e x t e n d i n g t h e i r c o n t r a c t s a n d e x t e n d i n g

the sponsorship and it had been a success to them.
ADV HOFMEYR:

The evidence before the Commission has explained

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31 OCTOBER 2019 – DAY 186
quite clearly why there was that gap prior to this contract, I accept that
you weren’t aware of this at the time.

Had you been told that the

reason why there was that gap is because it was having a bad
reputational impact on Eskom, can I take it you might have approached
w h a t M r M a t j i l a s a i d d i ff e r e n t l y ?
M R PA M E N S K Y :

Ye s c o r r e c t .

ADV HOFMEYR:

Thank you, if we then go back to page 15.

M R PA M E N S K Y :

Ye s m a ’ a m .

ADV HOFMEYR:
10

I want to pick up at paragraph 34 on that page. It

seems in some sense to be your summary paragraph of our ultimate
decision to ratify this contract. Could you give us, in your own words,
what the fundamental justification was for you in ratifying the contract.
M R PA M E N S K Y :

Sorry ma’am I took all the points into consideration

when I ratified this, this is just one of the points that explain more my
mind set to ratify the contract because management time and attention
a n d t h e B o a r d f o r t h a t m a t t e r, n e e d e d t o b e f o c u s e d o n t h e s e m a t t e r s
and I interpreted the legal opinion to say there was not a high
probability of a success of a litigation at that point in time and we as a
country were finding ourselves with the load shedding etcetera, I
20

believe that the Board and management time is better focused on those
issues ma’am.
ADV HOFMEYR:

I accept that the legal review presented two options

to Eskom, it was either cancel the contract or ratify it and proceed with
it.

A s I r e a d t h e r e v i e w, t h a t ’s t h e p r o d u c t o f t h e t w o q u e s t i o n s t h a t

were put to the lawyers. Do you have the same understanding of it?

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31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y :

I n e e d t o r e - r e a d i t a n d c h e c k i t a g a i n I c a n ’ t s a y.

What I understood from mind set was, that the lawyers had indicated
that there were two options to take in terms of the TNA contract.
ADV HOFMEYR:
that from.

Let me, in fairness to you, take you to where I derive

I t ’s a t p a g e 1 8 1 o f M M 3 a n d i f y o u p i c k i t u p t h e r e a t

paragraph 1.2 you’ll see there that what Ledwaba Mazwai is doing in
this paragraph is identifying the view that they’ve been asked to
express on the questions posed, do you see that?
M R PA M E N S K Y :
10

ADV HOFMEYR:

I see that ma’am.
And what are those three questions that they were

asked to answer?
M R PA M E N S K Y :

Yo u a r e c o r r e c t o n t h e l a s t q u e s t i o n , t h e y w e r e

asked what corrective action to be available to be taken pursuant in
r e s p e c t o f t h e a c t i n g C E O o n t h e o n e h a n d a n d M r C h o e u o n t h e o t h e r,
whether ratification of the contract as an option available to Eskom and
if so, what are the implications of ratifying the TNA contract would be
and would cancellation of the TNA contract is available to Eskom and if
so what are the implications of cancellation of the TNA contract.
ADV HOFMEYR:
20

Mr Pamensky I readily accept that you’re not a

l a w y e r b u t i t ’s r e l e v a n t t o k n o w w h a t w a s o r w a s n o t p u t t o t h e l a w y e r s
for their determination and what might have been relevant to the Board
when it was making this decision had been these options been
disclosed to it.

If you had been told that there was actually another

option available to Eskom, a legal option, not to cancel or to ratify but
to review the conduct that had precipitated this contract so that it

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31 OCTOBER 2019 – DAY 186
wouldn’t be required to be bound by it, is that something you would
have wanted to take into account?
M R PA M E N S K Y :

If that was there, one of the options, I definitely

would have taken it into account if they had included that element.
ADV HOFMEYR:

Thank you, and then if we go back to page 15 you

say at the bottom of that page you did not discuss the TNA agreement
or my decision to ratify it with other members of the Board before doing
s o , y o u s a y,
“I was satisfied to take the decision on the documents
10

made available to me.”
Do you see that?
M R PA M E N S K Y :

I see that.

ADV HOFMEYR:

Yo u g o o v e r o n t h e n e x t p a g e … ( i n t e r v e n e s ) .

M R PA M E N S K Y :

Sorry ma’am also why I was comfortable, there was

s u ff i c i e n t i n f o r m a t i o n w e r e c e i v e d a l e g a l o p i n i o n , w e r e c e i v e d a n a u d i t
r e p o r t , i n m y m i n d a t t h a t p o i n t i n t i m e t h e r e w a s s u ff i c i e n t i n f o r m a t i o n
to take a decision.

I had no reason not to believe the lawyers, the

auditors, our Chairman and any of the other Board Members in that
point in time ma’am.
20

ADV HOFMEYR:

Chair what I want to go to now is really the

c o n c l u d i n g a s p e c t s o f M r P a m e n s k y ’s a ff i d a v i t .
CHAIRPERSON:
ADV HOFMEYR:

Ye s .
And the point that he picks up over the page at 16

about the way in which this decision was taken by round robin
resolution.

I don’t anticipate a great deal longer in his evidence but

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w e ’ r e i n y o u r h a n d s i n s o f a r a s t a k i n g t h e b r e a k n o w, r e t u r n i n g
afterwards …(intervenes).
CHAIRPERSON:

Ye s , h o w m u c h t i m e d o y o u t h i n k y o u n e e d ?

ADV HOFMEYR:

I suspect 30 to 40 minutes.

CHAIRPERSON:

Okay maybe we should take the lunch break in that

event and then we’ll return at 14:00 and then we can try and wrap up.
ADV HOFMEYR:

T h a n k y o u C h a i r, I a l s o u n d e r s t a n d m y l e a r n e d f r i e n d

may want to ask some clarificatory questions in re-examination so that
will also facilitate us returning.
10

CHAIRPERSON:

Ye s o k a y, a l r i g h t .

ADV HOFMEYR:

But sorry there is one matter that my learned friend

keeps reminding me about today and I forget. One of the witnesses, Mr
J a c k s o n , w a s s u m m o n e d t o a p p e a r t o d a y a n d h a s b e e n p r e s e n t , t h e r e ’s
no chance that we would get to his evidence today and so may I
request that he be released?
CHAIRPERSON:

Ye s , n o , n o I t h i n k h e c a n b e r e l e a s e d b u t I m u s t j u s t

mention for the benefit of counsel for Mr Pamensky that I indicated
e a r l i e r t o t h e C o m m i s s i o n ’s L e g a l Te a m t h a t w e m i g h t n o t b e a b l e t o s i t
the whole day because I’m not too well but I will assess the situation as
20

we go along.

So we will see when we come back after lunch and it

would depend whether Ms Hofmeyr is able to finish within a certain time
and whether whatever re-examination you might wish to have, how
much time it might require.
ADV BLOU:

I ’ m n o t a b e l i e v e r i n l e n g t h y r e - e x a m i n a t i o n , i t ’s f o r

clarification only so I imagine if Ms Hofmeyr is within the 30 to 40-

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31 OCTOBER 2019 – DAY 186
minute period concerned, I’ll be something like 10 to 15 minutes at the
most.
CHAIRPERSON:

T h a t ’s a g o o d i n d i c a t i o n t h a n k y o u . O k a y l e t ’s t a k e

the lunch adjournment we’ll return at 14:00, we adjourn.
REGISTRAR:

All rise.

I N Q U I RY A D J O U R N S
I N Q U I RY R E S U M E S
CHAIRPERSON: Okay let us proceed.
A D V H O F M E Y R : T h a n k y o u C h a i r. M r P a m e n s k y I i n d i c a t e d b e f o r e t h e
10

lunchbreak we would move to the feature of this decision as a round
robin resolution.

But before we do that I do want to pick up on one

aspect of the earlier evidence. I spent some time traversing with you
w h a t I s u g g e s t e d w a s t h e B o a r d ’s r e s p o n s i b i l i t y t o d e t e r m i n e w h e t h e r
there was commercial value in the TNA contract. And in fairness to you
I would like to explain to you why I placed such importance on that.
A n d i t r e l a t e s t o a p r o v i s i o n o f t h e P F M A t h a t w e l o o k e d a t p r e v i o u s l y.
Yo u c a n g e t i t i n f r o n t o f y o u i f y o u w o u l d l i k e t o i t i s i n t h e L e g i s l a t i o n
Bundle and it is at page 31. It is the section on financial misconduct.
That section you will recall say that accounting authority for a public
20

entity commits an act of financial misconduct.

If that accounting

authority wilfully or negligently and then I am interested in sub (b)
makes or permits an irregular expenditure or a fruitless and wasteful
expenditure.
discussed

for

Yo u w i l l r e m e m b e r i n y o u r e v i d e n c e t h i s m o r n i n g w e
a

expenditure was.

moment

what

your

understanding

of

wasteful

The decision that was put before the Board for

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31 OCTOBER 2019 – DAY 186
ratification was a decision whether to continue with the contract with
TNA. Do you accept that?
M R PA M E N S K Y : Ye s .
ADV HOFMEYR: And Section 83.1(b) of the PFMA requires accounting
authorities not to commit acts of financial misconduct. Do you accept
that?
M R PA M E N S K Y : I a c c e p t t h a t .
ADV HOFMEYR: And one of the ways in which they do commit financial
misconduct is if they wilfully or negligently make or permit wasteful
10

expenditure from taking place. Do you accept that?
M R PA M E N S K Y : I a c c e p t t h a t .
ADV HOFMEYR:

Do you then accept that in order not to breach that

p r o v i s i o n o f t h e P F M A i t i s n e c e s s a r y f o r t h e B o a r d s o f S O E ’s a n d t h e i r
members when they make their decisions to determine whether a
decision is going to constitute wasteful expenditure or not.
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR:

And then I would like to ask you.

As you sit here

today knowing everything that you now know about this TNA contract
what preceded it, what was not revealed to you at the time you made
20

the decision whether you think the contract and the Boards ratification
of it constituted wasteful expenditure?
M R PA M E N S K Y : M a ’ a m l e t m e a s k t h a t – a n s w e r t h a t q u e s t i o n i n a f e w
ways. First of all when I said value I thought I explained it to the Chair
that my mind set was in the place not to lose that money but I did apply
my mind to the value.

What that value was; was given in mister – or

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31 OCTOBER 2019 – DAY 186
t h i s a c t i n g C E O ’s e l e m e n t – w h a t I a m s a y i n g t o y o u I d o n o t k n o w i f
that is 10, 20, 30, 40, 50 million rand. But not knowing this information
that it was not come to our attention I am sure the Board would have,
well I, certainly would have asked much more questions and wanted to
understand much more.
ADV HOFMEYR: If the Board had known everything you now know and
still ratified the decision do you think that would have amounted to
wasteful expenditure?
M R PA M E N S K Y : Ye s f o r s u r e .
10

ADV HOFMEYR:

Thank you.

Let us then move to the round robin

r e s o l u t i o n i f w e m a y a n d I p i c k i t u p a t p a g e 1 6 o f y o u r a ff i d a v i t . T h a t
is in MM3. At paragraph 37 on that page you say:
“I

did

not

think

it

was

strange

or

untoward

that

ratification of the TNA agreement was being sought by
way of round robin resolution rather than a formal Board
meeting.”
Why was that Mr Pamensky?
M R PA M E N S K Y :
common.
20

In my past history round robin resolutions are very

A s I s a i d e a r l i e r i f m a n a g e m e n t b e l i e v e t h e r e i s s u ff i c i e n t

information in front of them to provide a document for you to make a
decision and it is an urgent decision then a round robin would come. So
it was not strange or peculiar to me.
ADV HOFMEYR:

Yo u h a v e g i v e n e v i d e n c e p r e v i o u s l y t h a t y o u d i d

regard this decision as urgent, correct?
M R PA M E N S K Y : T h a t i s c o r r e c t .

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31 OCTOBER 2019 – DAY 186
ADV HOFMEYR:

And you linked that to the reportable irregularity

timeframe, is that right?
M R PA M E N S K Y : T h a t i s c o r r e c t m a ’ a m .
ADV HOFMEYR: But you accept that there was no reference made to
the reportable irregularity at all in the actual resolution that was
circulated?
M R PA M E N S K Y : C o r r e c t .
ADV HOFMEYR: Now if it was so urgent Mr Pamensky why was it not
raised at the 16 January meeting?
10

M R PA M E N S K Y : I c a n n o t a n s w e r y o u m a ’ a m .
ADV HOFMEYR: Did it not give you pause for thought?
M R PA M E N S K Y : N o t a t t h a t p o i n t i n t i m e a t a l l m a ’ a m . I m e a n t h i n g s
were moving very fast, very fluid there.

Yo u k n o w t h e s i t u a t i o n w e

found ourselves in and you just got caught into understanding the
business, getting involved and rectifying some of the problems that you
were faced with.
ADV HOFMEYR: It is just I suggest to you that if there was urgency in
it then by the 3rd of February you had already lost two and a half weeks
from your last meeting. Should it not – should that not have raised a
20

flag for you?
M R PA M E N S K Y : N o m a ’ a m I d i d n o t a c t u a l l y c o n s i d e r t h a t y o u k n o w.
It came a round robin.

I interpreted it as being urgent for the

reportable irregularity that I thought had been dealt with but obviously
it had not been dealt with and that is what I was faced with at that point
in time.

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31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y : W e l l y o u r e v i d e n c e e a r l i e r w a s t h a t y o u a c t u a l l y d i d
not know that it had been dealt with.
M R PA M E N S K Y : Ye s t h a t i s w h a t I a m s a y i n g . I d i d n o t t h a t t h e r e p o r t
irregularity had not been dealt with.
ADV HOFMEYR: And despite the fact that the resolution does not refer
to the reportable irregularity or to urgency you determined it was
urgent?
M R PA M E N S K Y : Ye s m a ’ a m .
ADV HOFMEYR: And what about the next meeting of the Board?
10

Do

you recall when that was?
M R PA M E N S K Y : N o m a ’ a m .
ADV HOFMEYR:

I t w a s o n t h e 1 6 t h o f F e b r u a r y.

Yo u g o t t h i s r o u n d

robin ...(intervenes).
M R PA M E N S K Y : O h y e s , y e s .
A D V H O F M E Y R : O n t h e 3 r d o f F e b r u a r y. D o y o u n o t t h i n k i t c o u l d h a v e
waited?
M R PA M E N S K Y : M a ’ a m I w a s c o m f o r t a b l e w i t h t h e d o c u m e n t s i n f r o n t
of me. I applied my mind and on the strength of the legal opinion and
where we were in that position I was comfortable to make the decision
20

on that round robin. I had no reason not to believe anyone at that point
in time.

Yo u k n o w I b e l i e v e d e v e r y o n e w o u l d b e t r a n s p a r e n t a n d

explain all these elements to us which they duty bound to as well.
ADV HOFMEYR: H’mm. Do you think Non-Executive Members of Board
should approach round robin resolutions with any scepticism?
M R PA M E N S K Y : I n g e n e r a l m a ’ a m ?

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31 OCTOBER 2019 – DAY 186
A D V H O F M E Y R : Ye s .
M R PA M E N S K Y : A f t e r t h i s e x p e r i e n c e d e f i n i t e l y.
A D V H O F M E Y R : I t h i n k t h a t i s a f a i r a n s w e r M r P a m e n s k y. I f w e t h e n
move to paragraph 38 on page 16.

Yo u t a l k t h e r e a b o u t t h e c o m f o r t

that you took from the fact that the CEO and the CFO had been copied
on the e-mail and that their approval for the resolution was also sought.
Do you see that?
M R PA M E N S K Y : I d o s e e t h a t m a ’ a m .
ADV HOFMEYR:
10

Are you aware that both of those executives were

removed in March – well placed on suspension in March of 2015?
M R PA M E N S K Y : I a m a w a r e .
ADV HOFMEYR: Did you not at that point reflect again on the reliance
that you had placed on their silence in relation to this matter?
M R PA M E N S K Y : N o I d i d n o t .
ADV HOFMEYR: Do you think you should have?
M R PA M E N S K Y : M a ’ a m i t i s h a r d t o s a y I d i d n o t k n o w w h o a p p r o v e d
that round robin at that point in time.

Yo u k n o w I r e p l i e d , I w a s

t r a n s p a r e n t . Yo u k n o w t h e r o u n d r o b i n c a m e .

I applied my mind and

then I replied back to everyone that was on that e-mail with was
20

everyone who was copied on it. So I was transparent, open and signed
it.

If anyone had problems potentially they could have responded by

them saying did you know a, did you know b?
ADV HOFMEYR:

I think the point Mr Pamensky though is that your

a ff i d a v i t i n d i c a t e s t h a t y o u t o o k c o m f o r t f r o m t h e f a c t t h a t t h e C E O a n d
the CFO were amongst those individual required to indicate their

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31 OCTOBER 2019 – DAY 186
approval or not. Is that right?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR: And a month later they were suspended. Do you not
think that that should have raised for you some concern about the
reliance you had placed on them?
M R PA M E N S K Y : M a ’ a m I d i d n o t c o n s i d e r i t t h e n .
ADV HOFMEYR: H’mm. Were you involved in that decision to suspend
them?
M R PA M E N S K Y : Ye s I w a s .
10

ADV HOFMEYR: Chair this is one of those areas that I flagged in the
opening where there are aspects of the evidence of some of the
witnesses that are not particular to the TNA enquiry but may well form
p a r t o f o t h e r a s p e c t s o f t h e C o m m i s s i o n ’s w o r k .
CHAIRPERSON: Work streams.
ADV HOFMEYR: Indeed.
C H A I R P E R S O N : Ye s . O k a y.
ADV HOFMEYR: So I just do want to flag that now for our purposes.
C H A I R P E R S O N : O k a y.
ADV HOFMEYR:

20

It was simply to relate that event in March with the

c o m f o r t t h a t y o u p l a c e d o n t h e i r i n v o l v e m e n t i n F e b r u a r y.
M R PA M E N S K Y : Ye s .
ADV HOFMEYR:

Alright paragraph 39 you make the point that you

have just made which is that you did not know what the outcome of the
round robin resolution was at the time, is that correct?
M R PA M E N S K Y : T h a t i s c o r r e c t .

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31 OCTOBER 2019 – DAY 186
ADV HOFMEYR:

Mr Pamensky I am going to need your help now

b e c a u s e w e a s t h e C o m m i s s i o n a s – a n d t h e L e g a l Te a m o f t h e
Commission standing here today do not actually know either what the
outcome of that round robin resolution was. So I am going to ask for
your assistance.

I u n d e r s t a n d y o u r a ff i d a v i t t o s a y y o u g a v e y o u r

r e s p o n s e b u t y o u d i d n o t s e e a n y o n e e l s e ’s , i s t h a t r i g h t ?
M R PA M E N S K Y : C o r r e c t .
A D V H O F M E Y R : Yo u a l s o i n d i c a t e t h a t t h e r e w a s a m e e t i n g t h a t t o o k
place on the 19th of March but the part of the meeting that dealt with
10

T N A y o u w e r e n o t i n a t t e n d a n c e f o r, i s t h a t c o r r e c t ?
M R PA M E N S K Y :

That is correct. As the minutes show on the 19th it

does not have me there present but as I stated before I clearly
remember the Section 8.3 below being in attendance at that meeting.
ADV HOFMEYR:

Right.

But let me just ask this?

That 19 March

meeting was a number of weeks after the 3 February resolution,
correct?
M R PA M E N S K Y : C o r r e c t .
ADV HOFMEYR: Would you not have expected that some result of the
round robin resolution would be made known to the Board in that
20

interim period?
M R PA M E N S K Y : N o m a ’ a m m y u n d e r s t a n d i n g a n d I a s s u m e d t h a t t h e
process followed by Eskom was the same as what we follow normally in
other companies that at the next formal Board meeting that is set up all
round robin resolutions were documented down.

In my understanding

of that reason is so you can see if it has been approved or if it has not

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31 OCTOBER 2019 – DAY 186
and which members have been approved or approved it. So that is how
it works within all the other organisations that I have operated in and it
is actually common practice as I understand.
ADV HOFMEYR: So did you ask about that at the 19 March meeting?
M R PA M E N S K Y : I c e r t a i n l y d o n o t r e c a l l a s k i n g .
ADV HOFMEYR: But that would have been when you needed to ask?
M R PA M E N S K Y :

Ye s b u t o n t h a t 1 9 t h – I m e a n – o h s o r r y o n t h a t

meeting of the 28th of May the auditors wrote a report that the
reportable irregularity had been addressed.
10

ADV HOFMEYR: Sorry we are not in May yet.
M R PA M E N S K Y : O h s o r r y.
ADV HOFMEYR: As I understand your evidence you understood it as
common practice that after a round robin resolution has been circulated
to a Board at the next formal meeting of the Board it is tabled, right?
M R PA M E N S K Y : T h a t i s c o r r e c t . T h o s e a r e t h e f o r m a l m e e t i n g s t h a t
a r e d o c u m e n t e d a t t h e b e g i n n i n g o f t h e y e a r.
date and the next date.

Yo u g o t 1 o f X d a t e , Y

Not ad-hoc or in between meetings as I

understand.
ADV HOFMEYR:
20

Well you met on the 16 February and there was no

update. Did you ask about it?
M R PA M E N S K Y : N o I d i d n o t .
ADV HOFMEYR:

Yo u m e t o n t h e 1 9 t h o f M a r c h a n d t h e r e w a s n o

update. Did you ask about it?
M R PA M E N S K Y :

No I did not but that 19th of March was an ad-hoc

meeting so I do not believe it would have been on the agenda.

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31 OCTOBER 2019 – DAY 186
ADV HOFMEYR: Why do you say it was an ad-hoc meeting?
M R PA M E N S K Y : B e c a u s e i t w a s a m e e t i n g t h a t w e n t i n t o i n c o m m i t t e e
and my understanding of that meeting was to deal with certain issues
that had arisen with the chairman at that point in time.
ADV HOFMEYR:

Mr Pamensky there were two meetings on the 19th.

And in committee and a full board meeting.
M R PA M E N S K Y : Ye s m a ’ a m .
ADV HOFMEYR:

So at least in the full meeting it could have been

raised?
10

M R PA M E N S K Y : I t c o u l d h a v e b e e n r a i s e d , c o r r e c t .
ADV HOFMEYR:

And following your common practice should have

been raised?
M R PA M E N S K Y :

I do not know if that was a formal set meeting date

but if it was it should have been put onto that round robin ma’am.
A D V H O F M E Y R : Ye s . B u t y o u g e t n o f e e d b a c k a c t u a l l y u n t i l a m e e t i n g
o n t h e 2 8 t h o f M a y, i s t h a t c o r r e c t ?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR: And tell us about what happened on the 28th of May?
M R PA M E N S K Y :
20

meeting.

Well on the 28th of May that was the formal board

It was the approval of the audited accounts and the

integrated report and in there the auditors explained – they – we asked
them is there any irregular expenditure or anything to that extent. I am
going by memory I can relook again and the auditors said the TNA and
another individual – I am just – sorry I am terrible with names.

Mr

Baloyi I think it was was the report – was irregular or something to that

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31 OCTOBER 2019 – DAY 186
e ff e c t b u t t h e T N A m a t t e r h a d b e e n r e s o l v e d t o a n d h a d b e e n
addressed to the satisfaction of the auditors. And then also at the end
there there was a note to say that the round robin resolution for noting
but I understand the wording said reconsideration but it there for noting
so the round robin was noted at that meeting for all the Board Members
to have a look and see at that point in time.
ADV HOFMEYR: I want to go to the language in a moment of that – the
minutes of that meeting.

But just help us with your – do you have a

clear memory of that meeting and the discussion of the TNA aspect?
10

M R PA M E N S K Y : N o m a ’ a m .
ADV HOFMEYR: So when you say it was there just for noting and not
for an actual decision to be taken are you sure about that?
M R PA M E N S K Y : Ye s I a m s u r e t h a t t h e p r o c e s s w o r k s t h a t a l l f o r m a l
s t u ff i s – y o u h a v e y o u r r o u n d r o b i n r e s o l u t i o n f o r n o t i n g t o t e l l y o u
whether it has been approved or not.
ADV HOFMEYR:

But at that stage you did not actually know yet

whether it had been approved, did you?
M R PA M E N S K Y : N o I h a d n o i d e a .
A D V H O F M E Y R : I n f a i r n e s s t o y o u l e t m e e x p l a i n o u r d i ff i c u l t y. I n t h e
20

r e c o r d s o f E s k o m w e h a v e o n l y b e e n a b l e t o t r a c k d o w n 9 a ff i r m a t i v e
responses to the round robin resolution. A 9 is just short of the 75%
that was required to carry that round robin resolution. Is this the first
time you are hearing these ...(indistinct)?
M R PA M E N S K Y :

Ye s i t i s t h e f i r s t t i m e t h e M R I i s v e r y c l e a r t h a t a

round robin resolution needs 75% approval.

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31 OCTOBER 2019 – DAY 186
ADV HOFMEYR:

Which on my maths is 10 out of 13 members.

I am

sure you can do it mentally being a Chartered Accountant. Our records
as we currently have them Chair only show 9 responses. It may be that
as persons who received Rule 3.3 Notices and were members of the
B o a r d a t t h e t i m e w e w i l l b e a b l e t o g e t g r e a t e r c l a r i t y.

But the

c o m p a n y s e c r e t a r y ’s r e c o r d s s h o w 9 a p p r o v a l s n o t 1 0 . O k a y. W i t h t h a t
background in mind can you go back to the meeting of the 28th of May
and tell me again whether you are absolutely sure it was merely noted
and not decided at that meeting?
10

M R PA M E N S K Y :

I almost sure it was for noting and not deciding at

that ...(intervenes).
A D V H O F M E Y R : O k a y.
M R PA M E N S K Y : B e c a u s e t h e r e w a s n o c o n v e r s a t i o n a c c o r d i n g t o t h e
best of my memory at this point in time.
ADV HOFMEYR: That is not consistent with the language used. So let
us go to the language of that resolution if we may? It is at page 413 of
your bundle which is Exhibit MM3.
M R PA M E N S K Y : M a ’ a m j u s t b e f o r e w e g o b a c k t h e r e y o u r e a l l y n e e d
to link on the same minute page 9 of 22 if I may?
20

A D V H O F M E Y R : Ye s i t i s p a g i n a t e d p a g e 4 0 5 .
M R PA M E N S K Y : Ye s .
“It was reported the TNA contract had been ratified by
t h e B o a r d a n d t h e r e f o r e n o l o n g e r r e g a r d e d a s i r r e g u l a r. ”
So that would have been ...(intervenes).
ADV HOFMEYR: Sorry where are you reading from?

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31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y :

Oh sorry 1,2,3,4,5 – the fifth line on the third

paragraph ma’am.
ADV HOFMEYR: Right.
CHAIRPERSON: I am sorry at 405 or 413?
M R PA M E N S K Y : 4 0 5 s o r r y C h a i r.
C H A I R P E R S O N : 4 0 5 o k a y.
M R PA M E N S K Y : S o r r y C h a i r.
C H A I R P E R S O N : Yo u m a y c o n t i n u e .
M R PA M E N S K Y :

“It was reported that the TNA contract had

been ratified by the Board and therefore no longer

10

r e g a r d e d a s i r r e g u l a r. ”
So that would then imply that it was for noting this wording over
here.
ADV HOFMEYR:

Right let us go to the wording.

Yo u w i l l f i n d t h a t

Chair at page 413.
CHAIRPERSON: Just hang on one second. Did you say Mr Pamensky
you were reading from paragraph 3 of 405?
M R PA M E N S K Y : Ye s – y e s C h a i r i t w a s p a r a g r a p h 3 .
CHAIRPERSON: Oh okay now I can see it.
20

M R PA M E N S K Y : A n d I w o u l d s a y 1 , 2 , 3 .
CHAIRPERSON: No I can see it is in the middle of the paragraph. I
was looking at the begging of the paragraph.
from there?
M R PA M E N S K Y : S o r r y C h a i r.
A D V H O F M E Y R : T h e n t o p a g e 4 1 3 C h a i r.

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Okay where do we go

31 OCTOBER 2019 – DAY 186
CHAIRPERSON: Okay thank you. Go ahead.
ADV HOFMEYR: And you have already flagged the challenge with the
language here. Because it does not actually talk about noting. It talks
about the round robin resolution for the approval of the TNA contract
was tabled for ratification.

Do you accept that sounds like there was

some meaningful decision that needed to be taken?
M R PA M E N S K Y :

At that point in time I did not recognise it in that

perspective and you know and as we went on in Eskom most of the
elements said round robin resolution for noting.
10

ADV HOFMEYR: H’mm.
M R PA M E N S K Y : T h e r e w a s a s p e c i f i c e l e m e n t i n E s k o m m o n t h s l a t e r
where an element was – came to the Board for noting so that why I
cannot answer you maybe the company secretary who was drafting
these could answer you. I am sorry ma’am.
ADV HOFMEYR:

H’mm.

And the resolution is the round robin

resolution for the approval of the New Age contract is ratified. Again it
s o u n d s i f y o u r e a d i t a n d y o u w i l l t e l l m e i f y o u h a v e a d i ff e r e n t v i e w
that it was being ratified in that meeting.
M R PA M E N S K Y : N o I w o u l d n o t i n t e r p r e t i t a s t h a t .
20

ADV HOFMEYR: I accept that.
M R PA M E N S K Y : S o r r y.
ADV HOFMEYR: And that is I understand your evidence to be because
of what is recorded at page 405?
M R PA M E N S K Y : Ye s m a ’ a m .
ADV HOFMEYR: Thank you. Mr Pamensky if we can then go back into

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31 OCTOBER 2019 – DAY 186
y o u r a ff i d a v i t a n d i f w e c a n g o t o p a g e 1 8 .
M R PA M E N S K Y : Ye s m a ’ a m .
ADV HOFMEYR:

Were you aware by that 28 May meeting whether

there had been any payments yet in accordance with the TNA contract?
M R PA M E N S K Y : N o I w a s u n a w a r e o f a n y p a y m e n t s m a ’ a m .
ADV HOFMEYR: At paragraph 44 on that page you say:
“I was not aware that Eskom had been asked to respond
to

parliamentary

questions

in

relation

to

the

TNA

contract or that the Public Protector had engaged Eskom
10

in relation to it.”
I think that is consistent with the testimony you have given this
morning.
M R PA M E N S K Y : C o r r e c t m a ’ a m .
ADV HOFMEYR: I would like to take you to what the Public Protector
said to Eskom at the end of 2014 so just before you came in as a new
B o a r d M e m b e r.

Yo u w i l l f i n d t h a t i n t h e f i l e c o n t a i n i n g M r Ts o t s i ’s

evidence. That is MM6. We are in MM6 and we need to go to page 364.
So this is a letter addressed to the Chairperson of the Board of Eskom
at the time and it is dated the 29th of October 2014. It is a letter from
20

the Public Protector and what it indicates at paragraph 1 is that the
Public Protector indicates
“Further to the letter from Willie Du Plessis to me dated
19 November 2013 copy attached kindly be informed that
I am finalising the above investigation and I am in the
process of drafting of a provisional report.”

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31 OCTOBER 2019 – DAY 186
Right can I just pause there?
C h a i r o n t h i s l e t t e r.

We have had evidence already

It is the letter that Mr Pretorius in fairness

indicated had been false in respect related to the independent analysis
that had been done on the value of the TNA contract. Notwithstanding
that that was not known to the Public Protector at the time she was no
doubt relying on State Owned Entities to respond honestly to her when
she asked questions.

But nonetheless at paragraph 2.

The Public

Protector records that it has since come to her attention through the
media that notwithstanding her ongoing investigation of the matter
10

E s k o m ’s

former

interim

Chief

Executive

O ff i c e r

Mr

Matjila

had

subsequently entered into a new and similar breakfast sponsorship deal
worth R43 million with the New Age.
And then if you go over the place – page she says:
“It has been disclosed further that the new deal was
concluded against the advice of the Board and in total
disregard of internal legal advice and the deal is alleged
to be an audit risk as it exceeded the sponsorship
budget.”
The important paragraph is actually paragraph 5 because what
20

the Public Protector does there in October – the end of October 2014 is
she says:
“In the interest of cooperative governance, transparency
and

accountability

I

implore

that

E s k o m ’s

new

sponsorship deal with the New Age newspaper should be
held in abeyance pending the release of her provisional

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31 OCTOBER 2019 – DAY 186
report.”
Mr Pamensky I take it you have not seen this letter before?
M R PA M E N S K Y : C o r r e c t .
ADV HOFMEYR:

If it had been brought to your attention at the time

would you have at least wanted a meeting, a board meeting at which
the TNA contract could have been debated?
M R PA M E N S K Y :

Straight away together with the fact that they have

a s k e d y o u a n d t h e P u b l i c P r o t e c t o r ’s o ff i c e h a v e a s k e d y o u t o h o l d t h i s .
T h i s i s a s e r i o u s r e q u e s t f r o m a s e r i o u s b o d y.
10

ADV HOFMEYR: Indeed. I would then like to deal with one or two final
m a t t e r s . Yo u c a n c l o s e u p t h e a ff i d a v i t o f M r Ts o t s i a n d a c c o m p a n y i n g
annexures. The aspect of the Choeu and any disciplinary proceedings
taken against him. Were you aware that the legal review recorded that
Mr Choeu was still an employee of Eskom?
M R PA M E N S K Y : Ye s I d i d .
ADV HOFMEYR: But despite that I understand your evidence earlier to
be that you read – for me one of the indecipherable paragraphs of the
resolution to indicate that he was no longer with Eskom, is that
correct?

20

M R PA M E N S K Y : T h a t i s c o r r e c t . T h a t r e p o r t f r o m t h e a u d i t – f r o m t h e
lawyers as you said earlier was the 4th of December this was now on
t h e 3 r d o f J a n u a r y – s o r r y t h e 3 r d o f F e b r u a r y.
ADV HOFMEYR: 3rd of February correct. And when I took you to that
resolution earlier just in fairness to you, you can pick it up in your
bundle MM3 at page 144.

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31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y : Ye s m a ’ a m .
A D V H O F M E Y R : Yo u w i l l r e c a l l t h a t w e d e a l t w i t h t h e d i ff e r e n t w a y s i n
which parties are referred to in this paragraph, correct?
M R PA M E N S K Y : Ye s m a ’ a m .
ADV HOFMEYR: In the same paragraph on your understanding of it the
parties are changing throughout, correct?
M R PA M E N S K Y : Ye s m a ’ a m .
ADV HOFMEYR: And you read this round robin resolution text together
with the legal review that said that Mr Choeu was still in the employ of
10

Eskom albeit dated December 2014, correct?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR:

Did you not think you might want to make some

further enquiries as to whether Mr Choeu had actually been released or
dismissed?
M R PA M E N S K Y : N o m a ’ a m i n m y m i n d i t w a s q u i t e c l e a r. T h e p a r t i e s
that were involved in this matter are no longer in the sphere of Eskom
operations.

It is quite clear to me in my mind otherwise I would – at

t h a t p o i n t i n t i m e I a m n o t s u r e w h e t h e r I k n e w t h e P F M A’s s p e c i f i c a c t s
but common knowledge would have put to me, listen Mr Choeu is there
20

let him come and answer what these questions are to take a termination
clause away against the lawyer he needs to answer and come explain.
ADV HOFMEYR: Do you not think it is an odd way to say am employee
is no longer in the employ of Eskom
M R PA M E N S K Y : N o m a ’ a m .
A D V H O F M E Y R : O k a y. A n d I u n d e r s t a n d y o u r e v i d e n c e t o b e y o u w e r e

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31 OCTOBER 2019 – DAY 186
not at the 19 March meeting when the issue of the TNA contract was
discussed, is that right?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR: Ms Klein Chairperson who was one of your Co-Board
Members has indicated in a statement before the Portfolio Committee
which she sought to have placed before this Commission that at that
particular meeting she raised her concern about no disciplinary action
having been taken against Mr Choeu but I understand you were not
there for that?
10

M R PA M E N S K Y : T h a t i s c o r r e c t m a ’ a m .
ADV HOFMEYR:

If you had been what do you think you would have

done?
M R PA M E N S K Y : N o d e f i n i t e l y I w o u l d a s k e d f o r a n i n v e s t i g a t i o n – n o t
investigation to find out the actions that he did and put him through a
disciplinary hearing in the sense of why did he remove the termination
clause. Was it a commercial decision? What was his mind set and let
the disciplinary work out what was the outcome of that.
ADV HOFMEYR:

Because the provisions we went through on the

PFMA.
20

M R PA M E N S K Y : R e q u i r e y o u .
ADV HOFMEYR: Require it.
M R PA M E N S K Y : R e q u i t e i t c o r r e c t .
A D V H O F M E Y R : A n d c r e a t e a n o ff e n c e i f i t i s n o t .
M R PA M E N S K Y : C o r r e c t .
A D V H O F M E Y R : D o n e b y a n a c c o u n t i n g a u t h o r i t y.

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31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR:

Mr Pamensky then just in conclusion if I may what I

would like to do is get your final comment on certain aspects which I
suggest sum up the essence of your testimony today and I want to do
that in two parts.

I want to get your comment on aspects that I

understand your testimony today to have made clear were not known to
you at the time.
That is the first category and then the second category is
what was known or I am going to suggest ought to have been known.
10

O k a y. S o l e t u s s t a r t w i t h w h a t w a s n o t k n o w n t o y o u . I s i t c o r r e c t t h a t
it was not known to you that the previous Board of Eskom had found
that there was no value in this contract?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR: It was not known to you that the Public Protector had
asked for the decision of the Board to be delayed until her report on
this very matter was produced?
M R PA M E N S K Y : C o r r e c t .
ADV HOFMEYR:

It was not known to you that the two previous

contracts with TNA were concluded without a budget and without the
20

involvement of the Sponsorship Committee?
M R PA M E N S K Y : I d i d n o t k n o w. S o r r y.
ADV HOFMEYR:

Yo u a l s o d i d n o t k n o w t h a t t h o s e t w o p r e v i o u s

contracts were in their own terms then irregular?
M R PA M E N S K Y : N o . I d i d n o t .
ADV HOFMEYR:

Yo u a l s o – I u n d e r s t a n d y o u r t e s t i m o n y t o h a v e

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31 OCTOBER 2019 – DAY 186
indicated that you did not know that there was another legal option
available to Eskom. That was the option when we were dealing with the
two questions that were put to the lawyers. I said actually there was a
third option.

Eskom could have taken steps itself to review the

decision and thereby not be liable under the contract.
M R PA M E N S K Y : C o r r e c t .
ADV HOFMEYR: And can I then ask you if you had known all of that do
you think you would have ratified this …(intervenes)?
M R PA M E N S K Y :
10

N e v e r.

I would have not – I would have definitely

called for more investigation. Never ratified it.
ADV HOFMEYR: Right. Then let us move to what you did know or I am
going to suggest to you, you ought to have known. So that you have an
opportunity to comment. The first Board meeting of the 16th of January
had made no mention of the TNA Contract. Correct?
M R PA M E N S K Y : C o r r e c t .
ADV HOFMEYR:

On the 3rd of February nonetheless you got a round

robin resolution and accompanying documents asking you as a member
of the Board to ratify a R43 million contract for business breakfasts.
Correct?
20

M R PA M E N S K Y : C o r r e c t .
ADV HOFMEYR:

At that time you linked urgency to the reportable

i r r e g u l a r i t y. C o r r e c t ?
M R PA M E N S K Y : C o r r e c t .
ADV HOFMEYR: And it did not occur to you at the time that if it was so
urgent it should have been brought up at 16 January meeting?

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31 OCTOBER 2019 – DAY 186
M R PA M E N S K Y :
time.

No.

I was there to – we dealt with at that point in

It did not occur to me at that introductory – on that 16th

of January meeting. No. It did not.
ADV HOFMEYR:

Yo u w e r e a w a r e a t t h e t i m e t h a t E s k o m w a s i n a

precarious financial position?
M R PA M E N S K Y : I w a s m a ’ a m .
ADV HOFMEYR: And is it fair to say that at the time that you took the
decision you were of a mind that Eskom should not lightly into a R43
million contract for business breakfasts?
10

M R PA M E N S K Y : M a ’ a m I c a n n o t c o m m e n t o n t h a t e l e m e n t . I w a s n o t
involved in sponsorships. I do not understand how they determine what
the game is – what the aim is.

So I do not know specifically but the

situation I was caught in was an issue that came from the prior Board
that came to us to that point in time where a decision had to be made.
ADV HOFMEYR:

Should an SOE always be cautious when it spends

public funds?
M R PA M E N S K Y : O f c o u r s e .
ADV HOFMEYR:

And should it be cautious when it is spending R43

million on breakfasts?
20

M R PA M E N S K Y : D e f i n i t e l y. A n y a m o u n t m a ’ a m .
ADV HOFMEYR:
lawyers

had

Yo u w e r e a l s o a w a r e t h a t t h e a u d i t o r s a n d t h e

concluded

that

Mr Matjila

was

guilty

of

financial

misconduct. Correct?
M R PA M E N S K Y : F r o m a P F M A p e r s p e c t i v e . Ye s .
ADV HOFMEYR: And that they had rejected his attempt at justification

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31 OCTOBER 2019 – DAY 186
that it was an investment?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV HOFMEYR: And that the contract had been concluded without the
termination clause despite legal advice to the contrary?
M R PA M E N S K Y :

M a ’ a m I a m n o t a l a w y e r t o t h e c o n t r a r y, b u t i t w a s

concluded without a termination clause.
A D V H O F M E Y R : Ye s b u t l e t m e g e t c l e a r o n t h i s . T h e S N G R e p o r t a n d
the Ledwaba Mazwai Review did record that there had been internal
a d v i c e f r o m E s k o m ’s l a w y e r s t h a t t h e t e r m i n a t i o n c l a u s e s h o u l d b e
10

retained. Are you aware of that?
M R PA M E N S K Y : Ye s .
ADV HOFMEYR: So it was in fact concluded without it contrary to the
a d v i c e o f E s k o m ’s i n t e r n a l l a w y e r s . Yo u k n e w t h a t ?
M R PA M E N S K Y :

That is correct which then equates – sorry ma’am.

That it equates to your misconduct ...(intervenes).
ADV HOFMEYR: Indeed.
M R PA M E N S K Y : A n d t h e n i t g o e s b a c k t o y o u r e x a c t P F M A A c t w h e r e
you have a duty to act.

20

ADV HOFMEYR:

Mr Pamensky I also want your comment on the

proposition

it

that

was

not

reasonable

to

rely

on

M r M a t j i l a ’s

assessment of the value of this contract given all of that backdrop.
M R PA M E N S K Y :

Ma’am I had no reason to disbelieve him.

I felt his

representations were comprehensive in the sense of explaining himself
and I did not at that point have any reason not to take it on the face
value that he gave at all.

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31 OCTOBER 2019 – DAY 186
ADV HOFMEYR:

But for the fact that he had been found guilty of

financial misconduct and but for the fact that he had concluded the
agreement that took the termination clause out of the contract?
M R PA M E N S K Y : N o m a ’ a m . A l s o w h e n I a m l o o k i n g a t t h a t – s o r r y t o
comment to you.
A D V B L O U : S o r r y C h a i r.
C H A I R P E R S O N : Ye s .
ADV BLOU:

I a m s o r r y.

I heard a statement that he had been found

guilty of financial misconduct as opposed to ...(intervenes).
10

C H A I R P E R S O N : Ye s . I h e a r d t h a t .
ADV BLOU: It was referenced in the Ledwaba Mazwai Report.
A D V H O F M E Y R : Ye s . I n d e e d .
CHAIRPERSON: H’mm.
ADV HOFMEYR:

Let us just find it.

So that we are absolutely clear

about the language that they used.
C H A I R P E R S O N : O h . Yo u w a n t e d t o s a y t h e y – t h e y t o o k t h e v i e w t h a t
he was guilty of financial misconduct?
A D V H O F M E Y R : I t h i n k m y l e a r n e d f r i e n d M r B l o u ’s c o n c e r n i s w i t h m y
u s e o f g u i l t y.
20

C H A I R P E R S O N : Ye s .
ADV HOFMEYR: So let us ...(intervenes).
CHAIRPERSON: And the finding.
A D V H O F M E Y R : Ye s . I n d e e d .
CHAIRPERSON: H’mm.
ADV HOFMEYR: So let us go to page 194. It is in your bundle MM3.

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31 OCTOBER 2019 – DAY 186
CHAIRPERSON: What is the page?
ADV HOFMEYR: 194.
CHAIRPERSON: Thank you.
ADV HOFMEYR: Chair we are at paragraph 5.4.2 on that page. This is
in the section headed “Financial Misconduct” and what Ledwaba
Mazwai record there ...(intervenes).
C H A I R P E R S O N : I a m s o r r y. I a m s o r r y.
A D V H O F M E Y R : A p o l o g i e s C h a i r.
CHAIRPERSON: I went to 194. Do you say 154?
10

A D V H O F M E Y R : S o r r y. I t i s 1 9 4 . . . ( i n t e r v e n e s ) .
CHAIRPERSON: Ja.
ADV HOFMEYR: But it is paragraph 5.4.2 on that page.
CHAIRPERSON: Oh. I must be looking at ...(intervenes).
ADV HOFMEYR: We ...(intervenes).
CHAIRPERSON: The wrong bundle.
A D V H O F M E Y R : Yo u m a y b e i n t h e w r o n g b u n d l e .
CHAIRPERSON: Ja.
ADV HOFMEYR:

Chair

we

are

in

Exhibit

MM3

and

page

194

...(intervenes).
20

C H A I R P E R S O N : Ye s . I t h i n k I h a v e g o t i t . Ye s .
ADV HOFMEYR: And it is at paragraph 5.4.2 on that page where the
authors of the legal review says:
“It appears to us that taking into account the factual
findings of the report and Section 57 of the PFMA as
mentioned in paragraph above that the conduct of

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31 OCTOBER 2019 – DAY 186
Mr Matjila in relation to the conclusion of the TNA
Contract also constitutes a financial misconduct.”
Do you see that?
M R PA M E N S K Y : I s e e t h a t m a ’ a m .
ADV HOFMEYR:

I a c c e p t t h a t t h e y d o n o t u s e t h e w o r d “ g u i l t y. ” b u t

they do conclude that his conduct is financial misconduct under the
PFMA. Correct?
M R PA M E N S K Y :

In relation to contravention of the delegation of

authority by breaching the delegation of authority by not having the
10

budget approved ...(intervenes).
ADV HOFMEYR: Huh-uh.
M R PA M E N S K Y : A n d n o t c o n s u l t i n g w i t h h i s E x c o .
A D V H O F M E Y R : Ye s .
M R PA M E N S K Y : Ye s .
ADV HOFMEYR: And that was not reason for you to be sceptical about
relying on what he said about the value?
M R PA M E N S K Y : I d i d n o t l o o k a t t h a t p o i n t a t t h a t t i m e .
ADV HOFMEYR:

And finally Mr Pamensky do you accept that as a

member of the Board of Eskom you were duty bound to make a proper
20

inquiry into the commercial value of the contract because you are duty
bound not to commit Eskom to wasteful expenditure?
M R PA M E N S K Y :

M a ’ a m c a n y o u m a y b e w o r d t h a t a d i ff e r e n t w a y t o

me, because ...(intervenes).
A D V H O F M E Y R : S o a s a n E s k o m B o a r d M e m b e r.
M R PA M E N S K Y : Ye s .

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31 OCTOBER 2019 – DAY 186
ADV HOFMEYR:

Yo u r e m e m b e r t h e S e c t i o n 8 3 t h a t w e l o o k e d a t .

It

says the accounting authorities of State-Owned Enterprises must not
wilfully or negligently make or permit wasteful expenditure by the
State-Owned Enterprise.

Do you accept that that is an obligation on

you?
M R PA M E N S K Y : I a c c e p t t h a t .
ADV HOFMEYR: And that in order to discharge that obligation all the
Board Members of Eskom including you needed to determine whether
there was commercial value in this contract before you ratified it?
10

M R PA M E N S K Y :

Ma’am you need to put into the situation the

circumstances we were in again. As I stated up front my reasons were
very simple. If we terminated that contract they will claim R43 million
without getting any sponsorship. On the value side I determined and I
looked at the value that was there, but I did not know the value if it was
worth 10, 20, R30 million.
So at the end of the day we were caught in the position where
– in my opinion and how I thought about was to get the best and
maximum value out of that contract. Hence one of the resolution points
was to say get the maximum out of that contract.
20

ADV HOFMEYR:

M r P a m e n s k y j u s t s o t h a t I a m c l e a r, b e c a u s e t h a t

w a s q u i t e a l o n g a n s w e r. D o y o u a c c e p t t h a t a m o n g s t y o u r d u t i e s a s a
Member of the Board was to determine whether there was commercial
value in the contract because your failure to do so may have resulted in
wasteful expenditure for Eskom?
M R PA M E N S K Y : I n t h i s s i t u a t i o n ?

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31 OCTOBER 2019 – DAY 186
A D V H O F M E Y R : Ye s .
CHAIRPERSON: Or maybe let us start at a general level.
M R PA M E N S K Y : O h y e s . A t a g e n e r a l m o s t d e f i n i t e l y.
C H A I R P E R S O N : Ye s . N o w i n t h i s s i t u a t i o n .
M R PA M E N S K Y : M o s t d e f i n i t e l y.
C H A I R P E R S O N : Ye s a n d t h e n i n t h i s s i t u a t i o n d o y o u a c c e p t t h a t t h e r e
was such an obligation?
M R PA M E N S K Y : I t i s h a r d t o s a y, b u t y o u k n o w i t i s h a r d t o s a y i n t h e
circumstances where you found even if Chair there was for argument
10

sake R1 million value.

Yo u k n o w f i r s t o f a l l i f y o u d i d n o t r a t i f y t h a t

contract then according to the attorney and the advice that we received
here we could be paying R43 million without even getting that one
million value.
So in my mind that value was what it is. So in this specific
situation it is very hard for me to answer you. In a general situation I
d o a g r e e w i t h t h e C h a i r.
A D V H O F M E Y R : T h a n k y o u M r P a m e n s k y.
M R PA M E N S K Y : T h a n k y o u m a ’ a m .
ADV HOFMEYR: Chair those are our questions.
20

CHAIRPERSON: Thank you very much. Any re-examination?
A D V B L O U : T h a n k y o u C h a i r.
CHAIRPERSON: Thank you.
ADV BLOU:

Chair my binoculars are back there.

So I might have to

just try and look …(indistinct).
C H A I R P E R S O N : Yo u c a n – d o y o u w a n t t o b r i n g t h e m c l o s e r ?

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31 OCTOBER 2019 – DAY 186
A D V B L O U : S o r r y.
C H A I R P E R S O N : Yo u c a n - d o y o u w a n t t o b r i n g t h e m c l o s e r ? I f t h e r e
i s s p a c e t o b r i n g t h e m c l o s e r y o u c a n b r i n g t h e m c l o s e r. S o t h a t i t i s
e a s i e r.
ADV BLOU: I think I will start with …(indistinct).
CHAIRPERSON: Ja. He can come and sit. Ja.
M R PA M E N S K Y : S o r r y C h a i r.
CHAIRPERSON: Oh, yes.
M R PA M E N S K Y : C o u l d y o u a s k h i m t o s p e a k i n t o t h e m i c .
10

ADV BLOU: No, no. There ...(intervenes).
C H A I R P E R S O N : Ye s .
ADV BLOU:

I t i s m y f i r s t h e a r i n g M r P a m e n s k y.

Let me start with

s o m e t h i n g t h a t i s w i t h i n y o u r f i e l d o f e x p e r t i s e M r P a m e n s k y.

Sort of

c o m f o r t a b l e g r o u n d f o r y o u . T h e q u e s t i o n o f r e p o r t a b l e i r r e g u l a r i t y. I t
may or may not have been traversed with other witnesses.
It might not – it might be well known to the Commission, but
could you just briefly explain what the characteristics of reportable
irregularity are?
M R PA M E N S K Y :
20

Reportable irregularity is when there is an unlawful

act or an omission of an act or action by the management of an
organisation whereby the auditors believe that it is likely to cause three
i s s u e s . A , f i n a n c i a l l o s s t o t h e c o m p a n y. I c a n n o t r e m e m b e r t h e o t h e r
one and the last one is in breach of your fiduciary duties.
So the auditors have reason to believe it is going to cause
you financial loss then they will raise the reportable irregularity and if

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31 OCTOBER 2019 – DAY 186
they believe it is in breach of your fiduciary duties.
ADV BLOU:

And it is included – the reportable irregularities are

included in the legislation that governs the auditing profession?
M R PA M E N S K Y : O h , y e s .
ADV BLOU: So it is a statutory obligation for them to report reportable
irregularities and to (indistinct) potential management to address?
M R PA M E N S K Y : T h a t i s c o r r e c t . S o r r y s i r. I a m n o t s u r e . I t i s l a w. I
do not know which part of the law it is, but it is law that they have to do
that.
10

ADV BLOU: And the 30 day period I think comes from ...(intervenes).
M R PA M E N S K Y : F r o m t h e l e g i s l a t i o n o r t h e l a w . . . ( i n t e r v e n e s ) .
A D V B L O U : O k a y.
M R PA M E N S K Y : W h a t e v e r r e g u l a t i o n .
ADV BLOU:

It just was not clear to me that you had said in your

evidence that you were aware even before you joined the Board in your
preparation even before the first meeting that there was a sponsorship
c o n t r a c t t h a t h a d b e e n t h e s u b j e c t o f a r e p o r t a b l e i r r e g u l a r i t y. I s t h a t
right?
M R PA M E N S K Y : T h a t i s c o r r e c t .
20

ADV BLOU:

But you said that it did not as far as you could recall

identify that contract as being the TNA Contract that we are concerned
with today?
M R PA M E N S K Y : T h a t i s c o r r e c t . T h e r e w a s n o t m e n t i o n o f t h e w o r d
TNA.
ADV BLOU: So just with the assistance of the Commission. If you go

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31 OCTOBER 2019 – DAY 186
to – in your bundle Mr Pamensky ...(intervenes).
CHAIRPERSON: If you stand too far away from the mic.
A D V B L O U : S o r r y. I t h a s g o t t h i s l i p w h i c h m a k e s i t v e r y d i ff i c u l t f o r –
to work on files.
CHAIRPERSON: Is the mic – I think the mic is moveable.
ADV BLOU: I am going to move the mic.
CHAIRPERSON: Ja, ja.
ADV BLOU:

Thank you.

Chair if I am here a few more days I will

become adapted.
10

C H A I R P E R S O N : D o n o t w o r r y. I t h a p p e n s t o u s a n d w e a r e h e r e f o r a
long time.
ADV BLOU:

s o r r y. I d o n o t k n o w i f i t i s a t t h i s .

If this is the right

document. Adam I am looking for the – it is – Ms Hofmeyr read into the
record or referenced two news articles that Mr Pamensky said he had
not seen that had preceded his tenure with the Board and I think the
one I am talking about is at 237 in Mr Pamensky MM3 Exhibit.
CHAIRPERSON: 237?
A D V B L O U : Ye s . N o w t h i s i s . . . ( i n t e r v e n e s ) .
C H A I R P E R S O N : O k a y.
20

ADV BLOU: Document we have not seen before and Mr Pamensky said
he had not, but I had a quick look at it.
CHAIRPERSON: Huh-uh.
ADV BLOU: If I could just take you to what the report says and I am
assuming – I know this is not what the source documents would have
said but this is what is reported. If you – one, two, three, four about

Page 139 of 156

31 OCTOBER 2019 – DAY 186
six paragraphs down. It mentions:
“ A r e p o r t a b l e i r r e g u l a r i t y, a n e x t e r n a l a u d i t o r ’s r e v i e w
statement

accompanying

E s k o m ’s

interim

financials

confirms that we have reason to believe that certain
alleged unlawful acts or omissions have been committed
by a member of the accounting authority of Eskom which
c o n s t i t u t e s a r e p o r t a b l e i r r e g u l a r i t y. ”
Now that is very vague and it does not inform anyone of any
detail. Right. It could be in any sphere at any member of the Board.
10

Right?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV BLOU: But then the next paragraph says:
“The Board Statement ...(intervenes).”
Presumably this is the Board statement that is in the interim
results that you read. This is now management statement.
M R PA M E N S K Y : L e t m e j u s t r e a d i t .
ADV BLOU: “Expand ...(intervenes).”
I am going to read it into the record.
“Expand on the auditor disclosure saying that the

20

alleged

irregularity

relates

to

the

conclusion

of

a

sponsorship contract amounting to 43 million by a
member of the accounting authority contrary to the
g r o u p ’s

delegation

of

authority

applicable

to

the

contract.”
That is what it says the financials or the group statements. Is

Page 140 of 156

31 OCTOBER 2019 – DAY 186
that ...(intervenes)?
M R PA M E N S K Y : Ye s . T h e i n t e r i m f i n a n c i a l s t a t e m e n t s .
A D V B L O U : Ye s .
M R PA M E N S K Y :

Did not mention any name and said there had been

...(intervenes).
ADV BLOU:

In other words is this the disclosure that you were

r e f e r r i n g t o t h i s e ff e c t ?
M R PA M E N S K Y :

Ye s .

We had said that there was a sponsorship

contract amounting to 43 million.
10

It never mentioned TNA.

It never

m e n t i o n e d t h e n a m e s w h a t s o e v e r.
ADV BLOU:

No, no.

We

have

evidence.

I am

just saying

...(intervenes).
M R PA M E N S K Y : O k a y.
ADV BLOU:

I am telling you what the actual statement was for the

benefit of the Commission. I am sure it can be confirmed by going to
t h e s o u r c e d o c u m e n t i n t h e f i n a n c i a l s t h e m s e l v e s . O k a y. S o t h a t i s t h e
f i r s t p o i n t . S o r r y. W h e r e i s m y r e - e x a m i n a t i o n p a p e r ? Ye s , v e r y n i c e .
Thank you.
The second question was and I think it was clarified by
20

Ms Hofmeyr at the end.

Prior to the round robin resolution being

circulated on the 3rd of February 2015. Was that the first time that you
now understood that the reportable irregularity in question related
specifically to this TNA Sponsorship Contract or had you somehow
found out before?
M R PA M E N S K Y : N o . I f o u n d o u t a t t h a t d a t e .

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31 OCTOBER 2019 – DAY 186
ADV BLOU: Because you were asked by Ms Hofmeyr a few times about
why you did not deal with the reportable irregularity in the early as
January meeting.
M R PA M E N S K Y : U n t i l y o u a r e i n m y h e a d .
A D V B L O U : Ye s .
M R PA M E N S K Y : S o r r y.
A D V B L O U : Ye s .
M R PA M E N S K Y : I n m y h e a d u n d e r s t a n d i n g w h y I t h o u g h t i t h a d b e e n
dealt with.
10

ADV BLOU: That is the …(intervenes).
M R PA M E N S K Y :

I thought management had dealt with – I mean the

Board had dealt with the matter before we came onto the Board based
on the timeline period.
A D V B L O U : E x a c t l y. T h a t i s t h e p o i n t I w a n t e d t o m a k e . Yo u m a d e i t
yourself.

Is that January Board Minute or Board Meeting did not

concern anything to do with reportable irregularities.

This is the first

time you could identify and link it to what you had read previously?
M R PA M E N S K Y : C o r r e c t .
A D V B L O U : O k a y. N o w i n t h a t c o n t e x t w h y d o y o u t h i n k t h e r e i s a 3 0
20

day period which is quite a short timeline placed on a reportable
irregularity to be resolved between management and the auditor in such
a short period of time. What you think accounts for that?
M R PA M E N S K Y :

In my mind there it is an urgent matter to do deal

w i t h . Yo u k n o w. I t h a s c o m e u r g e n t l y. T h e a u d i t o r s w a n t t o k n o w. I t
is an unlawful act and it needs to either be ratified or investigated.

Page 142 of 156

31 OCTOBER 2019 – DAY 186
A D V B L O U : B u t t h e p o i n t I a m m a k i n g i s t h a t i t i s n o t o n l y t h i s m a t t e r.
It seems that by making a 30 day ...(intervenes).
M R PA M E N S K Y :

Oh.

I t i s t o a l l m a t t e r s s o r r y.

All reportable

irregularities has 30 days to respond.
ADV BLOU:

So it is inherently to be dealt with within a short and

urgent timeframe?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV BLOU:

Because what is the implication for a company if a

reportable irregularity is not resolved on the presentation of the
10

financial statements.
M R PA M E N S K Y : O h .
ADV BLOU: Depending on how material it is.
M R PA M E N S K Y :

There is various elements.

Yo u k n o w s o m e o f t h e

reports what the outcome come can go to the Hawks, can go to SIU,
can go to the police, can go to investors.

Yo u m i g h t n o t b e a b l e t o

raise money on the back of your financials because they have not been
s i g n e d o ff b y t h e a u d i t o r s a n d w h e n i t a l s o g o e s t o r a i s e t h e f u n d i n g
and the ability to raise funding is definitely hampered by reportable
i r r e g u l a r i t y.
20

ADV BLOU: Can it result in the qualification to the audited financials?
M R PA M E N S K Y : I t d e p e n d s o n . . . ( i n t e r v e n e s ) .
ADV BLOU: The materiality?
M R PA M E N S K Y : T h e m a t e r i a l i t y o f t h e l e v e l . . . ( i n t e r v e n e s ) .
A D V B L O U : O k a y.
M R PA M E N S K Y : A n d t h e i n t e r n a l c o n t r o l s l i n k e d t o i t .

Page 143 of 156

31 OCTOBER 2019 – DAY 186
ADV BLOU: By definition as I understand it is dealing with matters of
h i g h i r r e g u l a r i t y.

Not every irregularity or problem found in an audit

has to be reported?
M R PA M E N S K Y : N o . I t h a s t o b e a m a t e r i a l i r r e g u l a r i t y.
A D V B L O U : O k a y.
M R PA M E N S K Y : I t c a n n o t j u s t b e a n o r m a l o r j u s t a – i t i s a j u d g m e n t
call and has to be material from an audit perspective.
ADV BLOU:

Can I then take you to the – sorry the round robin

resolution itself?
10

In your bundle it starts at 144.

Well the content –

s o r r y, i t s t a r t s a t 1 4 3 – M V P 1 4 3 .
M R PA M E N S K Y : Ye s s i r.
ADV BLOU: So if I could just – the page before 142. It was circulated
under a cover of an e-mail which told you if you look at the page before
Chair that it had been forwarded to all the other members of the Board.
Right? Is that correct?
M R PA M E N S K Y : Ye s . I t h a s b e e n – i t i s f r o m t h e c o m p a n y s e c r e t a r y
to the entire Board, Zola, Molefe, Montana, Naidoo, Khoza, Ngubane,
Baloyi ...(intervenes).
ADV BLOU: And my understanding is that ...(intervenes).

20

M R PA M E N S K Y : A n d a l s o Ve n t e r a n d – w h o i s t h e B o a r d – w h o i s a l s o
t h e B o a r d s e c r e t a r y.
ADV BLOU: Now of course this is to a large extent a fairly new Board
in the sense of its membership – what comprised its membership in
2015 as opposed to 2014?
M R PA M E N S K Y : Ye s . C o r r e c t .

Page 144 of 156

31 OCTOBER 2019 – DAY 186
ADV BLOU: And I am sure there has been evidence of this, but if you
go to the MVP143 my understanding is the common members in other
w o r d s L e g a c y B o a r d M e m b e r s f r o m t h e o l d B o a r d w h e r e M r Ts o t s i t h e
Chairman. Correct?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV BLOU:

Mr Montana

I

think

was

he

the

Chief

Executive

...(intervenes).
M R PA M E N S K Y : T h a t i s c o r r e c t C h i e f E x e c u t i v e O ff i c e r.
A D V B L O U : A n d t h e n – a n d T M o l e f e w a s t h e C h i e f F i n a n c i a l O ff i c e r.
10

M R PA M E N S K Y : C h i e f F i n a n c i a l O ff i c e r . . . ( i n t e r v e n e s ) .
ADV BLOU: I think there might have been one ...(intervenes).
M R PA M E N S K Y : A n d t h e r e w a s o n e m o r e .
ADV BLOU: Mr Mabude or Ms Mabude.
M R PA M E N S K Y : C h w a y i t a M a b u d e .
A D V B L O U : O k a y.
M R PA M E N S K Y : S o r r y.
ADV BLOU: So those were the carry overs. The rest of the members
either whether they were independent or executive were all new to the
Board?

20

M R PA M E N S K Y : T h a t i s c o r r e c t .
A D V B L O U : O k a y. S o n o w y o u r e c e i v e t h i s r o u n d r o b i n r e s o l u t i o n . I t
tells you what it does.

Ms Hofmeyr has gone through it with you in

s o m e d e t a i l . Yo u h a v e g i v e n e v i d e n c e o f t h e r e l i a n c e t h a t y o u p l a c e d
o n t h e l a w y e r ’s r e p o r t a n d o b v i o u s l y t h e r e w i l l b e s u b m i s s i o n s
regarding that ultimately the extent of the reasonableness of that, but

Page 145 of 156

31 OCTOBER 2019 – DAY 186
you appointed to the one that was just looked at.

The financial

m i s c o n d u c t c o n c l u s i o n a t t h e 1 9 4 . Yo u s e e t h e r e ?
M R PA M E N S K Y : C l a u s e 5 . 4 s i r ?
ADV BLOU:

5.4.2 which as you say related to the delegation of

a u t h o r i t y.
M R PA M E N S K Y : Ye s .
ADV BLOU:

And we know that financial misconduct either has to be

wilful in the sense that the party knows that he is breaching the terms
of the PFMA ...(intervenes).
10

M R PA M E N S K Y : C o r r e c t .
ADV BLOU: Or his internal delegating authority or it can be negligent
if he reasonably ought to have known.

There is no comment that I

could see in this document about whether that knowledge is wilful or
not.
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV BLOU: But let us assume that someone should know what his own
delegation is.

All it just shows you is that he had knowledge of the

irregularity that he committed in exceeding – assume he had knowledge
i n e x c e e d i n g h i s a u t h o r i t y.
20

M R PA M E N S K Y : Ye s .
ADV BLOU:

It tells you nothing about the merits of the contract and

you have been asked in detail about it.
M R PA M E N S K Y : Ye s .
ADV BLOU: Despite that you said that you had been – that there was
nothing sinister that was conveyed to you in the report are you able to

Page 146 of 156

31 OCTOBER 2019 – DAY 186
point me to any paragraph or paragraphs which reinforced your
impression in that regard that there was nothing sinister or improper
about what had happened.
M R PA M E N S K Y : I d i d n o t f i n d a n y t h i n g – w h i c h d o c u m e n t . S o r r y s i r.
ADV BLOU: In the same document.
M R PA M E N S K Y : I n . . . ( i n t e r v e n e s ) ?
ADV BLOU: In the same document by the lawyers.
M R PA M E N S K Y : O h t h e l a w y e r s . T h e y d i d n o t m e n t i o n a n y t h i n g t h a t
t h e r e w a s n o i m p r o p r i e t y.
10

ADV BLOU: Can I ...(intervenes).?
M R PA M E N S K Y : T h e y m a d e i t c l e a r.
A D V B L O U : Ye s . I t i s a t 3 1 7 a t p a g e 1 8 7 .
M R PA M E N S K Y :

Ye s .

They made it clear on both Mr Choeu and the

Acting CEO ...(intervenes).
ADV BLOU: So if I could just take you to – if I can ask you to read into
the record in …(intervenes).
M R PA M E N S K Y : I t c o u l d b e c l a u s e 3 . 1 . 7 i n c o n n e c t i o n w i t h m i s t e r – o r
the Acting CEO.
ADV BLOU: So it says the fact
20

CHAIRPERSON: Hang on, hang on, hang on.
A D V B L O U : S o r r y. S o r r y C h a i r. W e a r e t a l k i n g p a s t e a c h o t h e r.
C H A I R P E R S O N : Ye s . Yo u a r e . W h a t - w h a t . . . ( i n t e r v e n e s ) ?
ADV BLOU: So if you just listen to the question.
CHAIRPERSON: What page must I go to?
ADV BLOU: It is at page 187.

Page 147 of 156

31 OCTOBER 2019 – DAY 186
CHAIRPERSON: 187.
ADV BLOU: MVP187.
C H A I R P E R S O N : O k a y.
ADV BLOU: It – this is part of the Ledwaba Mazwai Report.
C H A I R P E R S O N : O k a y.
A D V B L O U : S o r r y C h a i r. I r e a l i s e w e w e r e t a l k i n g . . . ( i n t e r v e n e s ) .
CHAIRPERSON: H’mm.
ADV BLOU:

Against

each

o t h e r.

What

is

happening

here

...(intervenes).
10

CHAIRPERSON: 187 I have got.
A D V B L O U : Ye s .
C H A I R P E R S O N : Ye s .
ADV BLOU:

What is happening at 317 is they are discussing or

reporting to the Board on whether to take corrective action against
Mr Matjila and Mr Choeu and I will just read it into the record because
you have referred to it yourself. The relevant part is:
“The factors often taken into account for purpose of the
summary note include without limitation and in no order
or importance the following.”
20

Then the first factor mentioned is:
“Whether or not there has been impropriety on the part
of the employee and if so whether the employee wilfully
and knowingly took part therein or was perhaps innocent
to the impropriety being perpetrated from which they
derive

no

benefit.

In

our

reading

Page 148 of 156

of

the

report

31 OCTOBER 2019 – DAY 186
...(intervenes).”
And that is a reference to the SNG Report?
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV BLOU: “…we did not find any reference to suggest or it is
either reference to suggest or any suggestion of any
impropriety on the part of any Eskom employee in the
conclusion of the TNA Contract.”
M R PA M E N S K Y : T h a t i s c o r r e c t .
ADV BLOU:
10

And that is the statement they made in respect of both

Mr Matjila and Mr Choeu?
M R PA M E N S K Y :

On

both

of

them

there

was

no

impropriety

...(intervenes).
A D V B L O U : O k a y.
M R PA M E N S K Y : I n t h a t e l e m e n t .
ADV BLOU: As far as the previous Board Members are concerned and
there have been four that we have mentioned who we now know were
party to previous Board decisions which had discussed whether this
contract had value or not and what Mr Matjila was up to etcetera. We
know that those documents were not furnished to you as part of the
20

Board pack in relation to this round robin resolution, but those parties
were copied in on this document.
Do you find it surprising now in retrospect that those parties
did not make a disclosure to the new members of the Board that it had
already been decided that this was not a valuable contract.
M R PA M E N S K Y :

M o s t c e r t a i n l y. A l l t h o s e m e m b e r s w e r e d u t y b o u n d

Page 149 of 156

31 OCTOBER 2019 – DAY 186
t o i n f o r m u s s o w e c a n m a k e a n i n f o r m e d d e c i s i o n . Yo u k n o w i f w e d o
n o t k n o w s o m e t h i n g w e d o n o t k n o w. W e r e l y o n t h e l e g a l r e p o r t . O n a
report from the lawyers as well as institutional memory coming across.
It is a big reliance that we as new Directors have to place
reliance on and at that point in time I had no reason to not trust or
believe any of those parties.
A D V B L O U : O k a y. J u s t o n e m o m e n t . S o r r y C h a i r. I f I c a n j u s t h a v e
one moment please.
C H A I R P E R S O N : O k a y.
10

ADV BLOU:

So I just.

We just want you to point out.

It was a bit

unclear in your evidence in chief at page 36 – where or not you had
r e a d t h e d o c u m e n t a t 3 6 1 o f t h e b u n d l e o f M r Ts o t s i . I t h i n k y o u h a v e
a n s w e r e d i t g e n e r a l l y, b u t l e t u s j u s t c o n f i r m i t p l e a s e .

Ja.

So this

document at 361 ...(intervenes).
M R PA M E N S K Y : O f w h i c h p a c k ?
CHAIRPERSON: Is that 361 of ...(intervenes)?
A D V B L O U : O f M r Ts o t s i . I s i t – s o r r y. E x h i b i t M M 6 .
C H A I R P E R S O N : M M 6 . O k a y.
ADV BLOU:
20

Governance

This

is

Committee

an

extract from
December 2014.

t h e Tr a n s i t i o n
It

is

a

People

in

PowerPoint

presentation for what I can see and there is a reference to the
reportable irregularity at page 361, but it does not identify the TNA
Contract.

I just wanted to understand whether you had seen this

document before the 2015 round robin?
M R PA M E N S K Y : N o . I h a d n o t a n d t h i s i s a l i a r. R e p o r t e r w i l l i d e n t i f y

Page 150 of 156

31 OCTOBER 2019 – DAY 186
…(indistinct) doing their review of 30 September interim results. This
matter was reported to and dealt with by the Board.
A D V B L O U : Ye s .
M R PA M E N S K Y :

It had not been dealt with by the Board.

The

regulatory was still open.
ADV BLOU: But the question is whether you this – you had seen this
…(intervenes).
M R PA M E N S K Y : O h , n o . I h a d n o t s e e n t h i s d o c u m e n t .
A D V B L O U : S o r r y.
10

M R PA M E N S K Y : S o r r y. I h a d n o t s e e n t h i s . . . ( i n t e r v e n e s ) .
CHAIRPERSON: Ja. Do not go to close to it.
M R PA M E N S K Y : I h a d n o t s e e n t h i s d o c u m e n t a t a l l .
ADV BLOU: At the time of the round robin resolution?
M R PA M E N S K Y : I t i s t h e f i r s t t i m e I h a v e a c t u a l l y s e e n t h i s d o c u m e n t
w a s h e r e t o d a y.
ADV BLOU:

And then the last question just for maybe assistance.

There seems to be uncertainty about whether the requisite majority was
obtained in respect of the round robin resolution.

I am told that

Ms Klein might be able to give a more definitive answer to that.
20

M s Ve n e t e K l e i n . W o u l d y o u a g r e e w i t h t h a t ?
M R PA M E N S K Y : I n c o n n e c t i o n w i t h w h a t ?
ADV BLOU: About whether the statutory – whether the majority of 75b
p e r c e n t f o r t h e r o u n d r o b i n w a s i n f a c t o b t a i n e d o r n o t . Yo u s a y y o u d o
n o t k n o w.
M R PA M E N S K Y :

No.

I have no idea how they – if the 75% was

Page 151 of 156

31 OCTOBER 2019 – DAY 186
obtained.
ADV BLOU:

But would Ms Klein know or you are not in position to

…(intervenes)?
M R PA M E N S K Y : I h a v e n o i d e a w h o w o u l d k n o w t h i s . S o r r y.
A D V B L O U : O k a y. T h o s e a r e t h e q u e s t i o n s t h e n C h a i r.
CHAIRPERSON:

Thank you.

Thank you.

Do you have anything or

whether ...(intervenes)?
A D V H O F M E Y R : N o C h a i r.
CHAIRPERSON: Ja.
10

ADV HOFMEYR: No further questions. Just some ...(intervenes).
C H A I R P E R S O N : Ye s .
ADV HOFMEYR: Housekeeping and ...(intervenes).
C H A I R P E R S O N : Ye s .
ADV HOFMEYR: Organisational aspects.
C H A I R P E R S O N : Ye s .
A D V H O F M E Y R : C h a i r f r o m o u r s i d e – I d i d n e g l e c t t o d o t h i s e a r l i e r.
I mention at the outset that there were likely to be some lawyers
representing some of the implicated persons.
C H A I R P E R S O N : Ye s .

20

ADV HOFMEYR:

Over the lunch break the lawyer for Mr Ngubane

introduced himself to me.
C H A I R P E R S O N : Ye s .
ADV HOFMEYR:

H e h a s b e e n i n a t t e n d a n c e t o d a y.

I – he has

indicated to me at lunch maybe it makes sense for him to place himself
on record, but now that we are at the end of the day ...(intervenes).

Page 152 of 156

31 OCTOBER 2019 – DAY 186
CHAIRPERSON: Ja.
ADV HOFMEYR:

It probably makes sense for him to do so when

M r Ts o t s i r e t u r n s f o r h i s e v i d e n c e . . . ( i n t e r v e n e s ) .
C H A I R P E R S O N : Ye s .
A D V H O F M E Y R : B e c a u s e i t i s i n r e s p e c t o f M r Ts o t s i ’s e v i d e n c e .
CHAIRPERSON: Ja.
ADV HOFMEYR: That Mr Ngubane received a Rule 3.3 Notice.
C H A I R P E R S O N : Ye s . N o t h a t i s r i g h t .
ADV HOFMEYR: And so the remaining thing is just the arrangements
10

...(intervenes).
C H A I R P E R S O N : O k a y.
ADV HOFMEYR: From the hearing.
C H A I R P E R S O N : O k a y. L e t u s . . . ( i n t e r v e n e s ) .
ADV BLOU: Sorry briefly Chair ...(intervenes).
C H A I R P E R S O N : Ye s .
ADV BLOU:

Sorry Chair apologies, I am just again not as au fait with

the detailed procedures, when submissions are going to be made to you
in connection with inter alia this witnesses evidence, is it intended that
if he wants, his legal representatives will have an opportunity to make
20

s u b m i s s i o n s t o y o u o r – I d o n ’ t k n o w i f i t ’s p a r t o f t h e p r o g r a m m e o r
not?
CHAIRPERSON:

Ye s , n o t h e i n t e n t i o n i s w h e n a l l o r a l e v i d e n c e h a s

been completed, implicated persons and people representing witnesses
would be given an opportunity to make representations. At this stage
I’m not sure whether everybody would be given an opportunity to make

Page 153 of 156

31 OCTOBER 2019 – DAY 186
representations or present oral argument or it would just be written
submissions but there would be an opportunity to make submissions in
o n e w a y o r a n o t h e r.
ADV BLOU:

So I would just ask Ms Hofmeyr to keep us informed of

the relevant process at the relevant time and are the documents in
other bundles are these documents where copies can be requested or
are they to remain here.
CHAIRPERSON:

Ye s I t h i n k a n y d o c u m e n t t h a t i s r e l e v a n t t o y o u r

c l i e n t , m a y b e r e q u e s t e d , t h e L e g a l Te a m c a n b e c o n t a c t e d a n d
10

arrangements can be made.
ADV BLOU:

We don’t need to detain you further with that, thank you

t h e n C h a i r, t h a n k y o u M s H o f m e y r.
CHAIRPERSON:

Thank you.

I t h i n k M r P a m e n s k y l e t m e j u s t s a y,

thank you very much for coming to give evidence, if a need arises for
us to ask you to come back we will ask you to come back but for now
you are excused.
M R PA M E N S K Y :

T h a n k y o u C h a i r, I h o p e I a d d e d s o m e v a l u e t o y o u

guys and I’m always available to assist when you can, thank you very
much, thank you ma’am thank you.
20

CHAIRPERSON:

Thank you very much, thank you.

We are going to

a d j o u r n f o r t h e d a y n o w, w e c o u l d n o t c o n t i n u e t o h e a r t h e n e x t w i t n e s s
because I’m not well and we are not going to sit tomorrow to give me
a n o p p o r t u n i t y t o r e c o v e r. O n M o n d a y w e a r e g o i n g t o s t a r t a t 2 p m , n o t
in the morning to hear – to continue with the evidence relating to TNA
so we won’t start at 10:00 we’ll start at 14:00 on Monday and then we’ll

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31 OCTOBER 2019 – DAY 186
s i t o n Tu e s d a y a s w e l l . W e w i l l n o t b e s i t t i n g h e r e n e x t w e e k b e c a u s e
t h i s v e n u e i s n e e d e d b y t h e L e s s o r, w e w i l l b e s i t t i n g i n t h e C h a m b e r o f
the Johannesburg Municipal Council details will be given about that and
I think a media statement may be issued tomorrow to tell everybody
exactly where that will be. So for the whole of next week we won’t be
sitting here we will be sitting in that venue then that other week we will
be back here. Is there anything I’m leaving?
ADV HOFMEYR:

Chair not per se I just wondered if I might indicate

when the witnesses who’ve been moved to next week are appearing
10

because it may well be relevant to implicated persons and their lawyers
that they attend on those days.
CHAIRPERSON:
ADV HOFMEYR:

Ye s .
So the current intention when we start at 14:00 on

Monday is to receive the evidence of Mr Jackson and Mr Paklani and
t h e n o n Tu e s d a y t h e 5 t h o f N o v e m b e r t o r e c e i v e t h e e v i d e n c e o f M r
N k o n a z i a n d M r Ts o t s i , t h a n k y o u .
CHAIRPERSON:

O k a y, w e a r e t h e n d o n e , w e a d j o u r n .

REGISTRAR: All rise.
I N Q U I RY A D J O U R N S T O 4 N O V E M B E R 2 0 1 9
20

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31 OCTOBER 2019 – DAY 186

TRANSCRIBER’S CERTIFICATE FOR COMMISSION OF INQUIRY INTO STATE
CAPTURE
HELD AT
PARKTOWN, JOHANNESBURG

DATE HELD

: 2019-10-31

DAY:

: 186

TRANSCRIBERS

: B KLINE; M NETTA; D STANIFORTH

Audio’s are typed verbatim, as far as audible/possible

Page 156 of 156